Finally! Reforming Politics: The BC Blueprint
A Fraser Institute Conference,
November 22, 2001, Vancouver, BC, Canada
[Contents]
Powers Reserved to the Electorate
Limitations and Ambiguities
Barry Cooper
Senior Fellow, The Fraser Institute
Calgary
There are three main points I would like to make in the next few minutes:
First, there are some very important constitutional formalities that limit the effectiveness of direct democracy measures. I will call this the Constitution, and it is found chiefly in the schedule appended to s.52 of the Constitution Act, 1982.
Second, there is, notwithstanding these formalities, a longstanding substantive tradition of effective (not formal) popular sovereignty, the origins of which can be documented at great length in the Confederation period. I will refer to this as the constitution.
Third, even if direct democracy could be more widely practiced in Canada today, because of the impact of technology, for example, any legislation that supports such measures must also take into account Constitutional formalities. And, if this is properly done, politicians will find it difficult to ignore expressions of effective popular sovereignty even while they live and move and have their being within a Constitution that vests sovereignty in the crown – the crown in right of Canada, the crown in right of British Columbia, but the crown nevertheless.
First, then, the Constitution.
In July, 1994 the Government of British Columbia passed the Recall and Initiative Act. It is entirely appropriate that the same act contain provisions for establishing procedures to recall elected members and to initiate legislation inasmuch as these two procedures, along with the referendum, comprise the three aspects of what is usually referred to as "direct democracy" or "direct legislation." At the same time, it is unquestionably true that such procedures originated not in a parliamentary system, but in a congressional one, the essence of which is that the body that represents the people is legally the government. The contrast with a parliamentary government could not be more clear: in a parliamentary regime, the house is simply a legal body composed of individuals summoned from the constituencies where they were elected and charged with the task not of governing but of supporting a government. The house does not choose a government; that task is performed by the electorate, usually by means of returning one political party to the house with a majority of members. Officers of the crown, or ministers, and their subordinate servants, the civil service, undertake the actual governing, and do so by submitting their administrative and legislative activity to scrutiny by the house. All of these procedures are well known, and taken together constitute a set of procedural forms that cannot easily be accommodated to the procedures of direct democracy.
As in the United States, proponents of direct democracy in Canada have chiefly been westerners. Many of the same regionally-based interests are expressed in criticism of existing arrangements on both sides of the line, but only in Canada have direct democracy measures been declared illegal. I would like to refer to some instances.
The first Canadian parliamentarian to sign a recall resignation statement was O.R. Gould, elected after the 1919 by-election in Assiniboia. In the spring of 1920, the issue was debated at some length in the House of Commons, and led to a motion to make it illegal to draft an undated letter of resignation because, critics said, it violated the privilege of the House to determine its own membership and it left a member beholden to the few individuals who held the letter of resignation. When the Dominion Elections Act was revised in 1938, s.106 explicitly prohibited MPs from signing pledges, the effect of which would be a recall of the sitting member. During debate, the point was repeatedly made that recall was unparliamentary in the simple sense that MPs were first of all Members of Parliament of Canada, not ambassadors from their constituencies. Critics said s.106 was anti-democratic.
Other direct democracy measures had been attempted in the provinces. In 1912, in Saskatchewan, the Liberal government of Premier Walter Scott introduced the Direct Legislation Act. It provided for a 90-day interval following the close of a legislative session for a referendum petition to be submitted asking that a specific measure be referred to a vote of the electorate, excepting only measures granting supply. Some Acts could be declared exempt from this provision if explicitly so identified, passed by a two-thirds majority, assented to, and proclaimed. The premier had grave doubts as to the constitutionality of the bill and decided to submit the direct legislation package itself to a referendum and set a double threshold: 30% of the electorate was required to take part, and a majority had to approve of the proposal. The high level of support required for passage and the low level of publicity accorded the referendum ensured its defeat, notwithstanding the five-to-one vote in its favour. As a result, the Direct Legislation Act was repealed at the next session.
Alberta, not Manitoba, had the most extensive experience with direct democracy and gave this political doctrine the most extensive statutory expression. However, it was in Manitoba that the incompatibility of populist measures and direct democracy with the constitutional forms of responsible government was first decided in and by the courts. Manitobans climbed aboard the direct legislation bandwagon rolling across the prairies in 1916, but they had been flirting with the idea for some time before that, chiefly in the pages of the Grain Growers' Guide. In January, 1914, an opposition Liberal MLA, C.D. McPherson, introduced a resolution calling for the introduction of direct legislation, claiming the measure "is in direct accord with the British principles of government." The Roblin government opposed the measure and nothing happened until it fell in 1915 and was replaced by the Liberals who promptly and unanimously passed the Initiative and Referendum Act. As might be expected, the Act was hailed in the Assembly as a triumph of democracy, popular sovereignty, and the common sense of the common people. The essential feature of the law was that the Legislative Assembly passed a law that made it possible for a body other than itself, namely the electors of Manitoba, to pass and repeal laws. Once they passed this measure, however, the Cabinet had second thoughts and decided to refer the Act to the courts for a ruling on its constitutionality.
By agreement of all sides there was no argument at trial and the Chief Justice of the Court of King's Bench upheld the legislation. In the Manitoba Court of Appeal it was ruled unconstitutional, a judgment ultimately upheld by the Judicial Committee of the Privy Council in a decision written by Lord Haldane. What was wrong with the law, what made it unconstitutional, was that ss.69 and 71 of the BNA Act and s.9 of the Manitoba Act make it clear that "the King shall be a part of each legislative body."
In the words of Chief Justice Howell:
The Crown is a vital portion of the legislative power, and there is no provision for the representative of the King having any part in this proposed legislation. The law apparently is to take effect without the assent of the Crown. Who is to advise the Lieutenant-Governor as to these bills which are voted on, and who is to be responsible for the legislation? If a bill was passed which did not meet with the approval of the Chief Minister, the Lieutenant-Governor would be without an adviser, and there would be no representative of the people responsible for the legislation.
The effect, in other words, would be to alter the office of the Lieutenant-Governor, which is clearly beyond the power of the legislature – then and now.
Justice Richards agreed, adding that:
The people have never held the sovereign power in the United Kingdom. It was originally wholly vested in the King; and while it has gradually departed from the King, except in form, it has, in fact, been taken over by the Parliament, who now exercise the real sovereignty. In Canada there is no sovereignty in the people. Our powers to legislate are such, and only such, as that Parliament has given us. Our legislature consists of the Lieutenant-Governor and the Legislative Assembly. To substitute the popular vote for that of the Legislative Assembly would leave us without a legislature.
In short, the Manitoba Court of Appeal simply reconfirmed a number of well known constitutional forms regarding the nature of a legislature in a parliamentary regime. On appeal Lord Haldane agreed.
That ruling would seem to be conclusive, but nothing is conclusive where lawyers are involved, and this decision has been challenged in the law journals, if not in the courts.
Turning to Alberta: between 1913 and 1916, the Alberta Legislature enacted three laws providing for the initiative and referendum. The impetus for these measures came from the United Farmers of Alberta, the most powerful social and political organization in the province. Liberal Premier A.L. Sifton introduced the bills and the Conservative Opposition was able to criticize only the details. The operation of the Act was nearly identical to the proposals introduced in Saskatchewan, and was used chiefly to obtain the views of the electorate regarding the controversial question of prohibition. In the event, a petition presented to the Assembly in 1915 was adopted, in essentially the same words a year later, and the sale if liquor was duly prohibited. A liquor store owner was unhappy and went to court, declaring the Alberta Liquor Act was unconstitutional because it simply reflected the words of a petition, not the deliberation of an assembly. On appeal to the JCPC Lord Sumner disagreed: the Alberta Liquor Act had been constitutionally enacted, whatever lay behind it – in this case the petition of 1915.
As expected, this decision has also led to learned debate in the law journals. The difference between the Alberta and the Manitoba cases, it seems to me, is this: the Manitoba law clearly interfered with the office of the Lieutenant-Governor but the Alberta law did not. It did, however, appear to create a statutory duty of the Alberta legislature to pass a law; this duty, however, must have been directory rather than mandatory, a slim enough distinction, but sufficient to save the Alberta law.
In the event, the statute remained on the books until 1958 and remained unused. It was repealed as a result of inquiries by some Albertans about the procedures for using it.
In April, 1936, the Legislative Assembly of Alberta passed the Social Credit Measures Act along with "the first recall bill ever to be passed in the British Empire." The story of the passage of the Recall Act and its first use, against the Premier, has often been told, usually with glee by individuals who were opposed not only to Social Credit and to William Aberhart, but to the spirit of self-sufficiency and initiative that the Social Credit legislation symbolized to Albertans. The Social Credit legislation, nearly all of which was either disallowed or reserved by the Lieutenant-Governor, was inspired by the same doctrines of representation as was the Recall Act.
In 1919 British Columbia passed an Act to Provide for the Initiation and Approval of Legislation by the Electors. It was not proclaimed after being passed, however, pending the outcome of the Manitoba case. When the Judicial Committee handed down its decision in July, the law was not proclaimed at all. It remained on the books, however, and as late as 1992, Patrick Boyer remarked, it could become law if proclaimed.
Over the years several plebiscites have been organized in B.C. under provisions of the Elections Act, most of which involved beer, wine, or daylight savings time. On July 5, 1990, shortly after the demise of the Meech Lake Accord, the Social Credit Government of William Vander Zalm introduced Bill 55, the B.C. Referendum Act, for first reading. The government went out of its way to ensure that the legislation was compatible with the traditions of parliament, in that the results were directory, and left a great deal of discretion to the government.
With a certain amount of misgiving, both on the Social Credit side and on the side of the NDP, two questions were submitted to voters in conjunction with the October 17, 1991 general election. One concerned establishing a legal right of citizens to initiate referendum questions and a second asked whether the voters were in favour of a right of recall. Both questions received very strong support from the electorate though the government that sponsored them was defeated and the NDP was left to deal with the results.
Eventually the new government appointed a committee to look into the kind of process that British Columbians wished to see in place, and in late November, 1993, they produced a Report permeated with doubts and regrets. "It must be acknowledged," the Report said, "that the concepts of recall and initiative are alien to our parliamentary system of government." If, nevertheless, support for such measures was widespread, this "may be a symptom of the anger and resentment that many Canadians feel towards the institutions of our contemporary political systems." Notwithstanding the reservations of the Committee and, no doubt, of the government of Michael Harcourt, the required legislation was quickly passed. The recall provisions have in fact been invoked and applied, as you know. Whether the legislation has been a political success is a matter for the citizens of British Columbia to decide, not some Calgary political scientist. Formally, however, the law certainly looks to be Constitutional. Were it ever tested in the courts, an adverse judgement would probably turn on the weight accorded conventions and privilege, aspects of the constitution that courts are reluctant to examine.
Let me turn, now, to my second point, the existence of a genuine tradition of popular sovereignty within the formal Constitutional structure that assumes the sovereignty of the crown.
It has become a massive commonplace that the Fathers of Confederation were primarily deal-makers, not philosophers. The American Founding Fathers, Jefferson, Madison, Hamilton, they say, were philosophers; Macdonald and Galt and Cartier surely were not. John Ibbitson wrote not so long ago in the Globe and Mail: "The Americans rightly revere their founding fathers; the American constitution is a magnificent thing. The Fathers of Confederation, on the other hand, should have been horsewhipped. Maybe it was the champagne at Charlottetown, or the rain at Quebec. But the framers of the British North America Act bequeathed Canada one of the democratic world's worst constitutions." One of the worst!
Academics are more reserved, but the message is the same. Here is Ramsay Cook: "It is well known that the Fathers of Confederation were pragmatic lawyers for the most, more given to fine tuning the details of a constitutional act than to waxing philosophical about human rights or national goals." Here is Frank Underhill in the Massey Lectures of 1963: "The Canadian Fathers in contrast to the U.S. Founders, were ignorant of philosophy." Well. I am here to tell you that, thanks to the splendid work by a political scientist, Janet Ajzenstat, the views of these distinguished historians as well as of distinguished journalists are simply untenable. The Fathers of Confederation did have ideas and coherent opinions and arguments, which is all that usually is meant in this context by the term philosophy.
As Ajzenstat said, "if we were to rely only on what we know of the Fathers from the Charlottetown and Quebec Conferences, it would be easy to conclude there's no philosophy in our founding. The meetings were held behind closed doors; we have records, though not complete ones. What we have indeed seems to show a pragmatic group of men with their minds on business, doing a deal. There's no philosophy on parade." But when we look at the debates over accepting or rejecting the deal, or the ‘"treaty" as Macdonald liked to call it, a different picture emerges.
In this context they thought about ratification and about how to legitimate the new body politic. The issues of legitimating and of founding a new regime goes to the heart of political philosophy. Whether they wanted to or not, legislators in every one of the assemblies in British North America were driven to philosophize about the new government. They spoke of liberty, political participation, the duties of representatives, of ambition and how to keep it within bounds, of loyalty and patriotism, of political obligation and obedience to law. Most importantly, they addressed the central question in the issue of ratification: will legislative resolutions suffice to legitimize the founding of the new nation or must the sovereign people be consulted directly?
Because they have focussed so strongly on the formalities of the Constitution and on a simple tale of evolution, "from colony to nation," Canadian historians and political scientists have simply accepted, in Peter Russell's words, that "at Canada's founding its people were not sovereign, and there was not even a sense that a constituent sovereign people would have to be invented." But as Ajzenstat proves beyond question, this is not so. Conservative or Liberal, pro- or anti-Confederation, the starting point was that the people are the repository of rightful constituent power. Here's one statement, uncontradicted because it was so widely assumed to be true: the "people are the only rightful source of all political power," said James O'Halloran, in the Canadian legislative Assembly, on March 8, 1865. The only issue of moment was: how were the people to make its wishes known?
One side, mostly anti-Confederation, argued for consultation by referendum or a single-issue election in each province. "The principle which lies at the foundation of our constitution," said William Lawrence of Nova Scotia, "is that which declares the people to be the source of political power." O'Halloran in the Canadian Legislative Assembly agreed: If we [legislators] do not consult the people, "we arrogate to ourselves a right never conferred upon us, and our act is a usurpation." William Gilbert of New Brunswick sounded a lot like Locke: "The only way in which the constitution of a free, intelligent and independent people can be changed at all," he said, "is by revolution or the consent of the people." By implication, in Gilbert's view, Confederation was a Canadian Revolution. Gilbert was not alone in his opinion.
J.S. Helmcken of B.C. declared "it is for the people to say whether they will have confederation or not." On the other side of the continent, Thomas Glen of Newfoundland said: "The constitution was granted, not to the house of assembly, but to the people of Newfoundland, and he considered the people were entitled to be consulted before we came to a decision."
These appeals to popular sovereignty, it nearly goes without saying, were passionate and principled because the individuals involved thought that a great deal was at stake. James Currie of Canada said the new arrangement would "vote away our whole constitution." Peter Sinclair of Newfoundland said the delegates at Quebec City had "signed away our rights." These were sentiments that expressed a clear sense that what was happening could not be undone. This was a constitution they were debating and constitutions are intended to endure. Said Benjamin Seymour of Canada: "Here you propose to change the constitution – to change the whole fabric of society – in fact to revolutionize society, without asking the consent of the people, and without the possibility – at any rate the reasonable possibility – of this important change ever being reconsidered." Stewart Campbell of Nova Scotia was concerned that, if the measure were passed now, "it will be passed forever – the doom of Nova Scotia sealed."
The other side, mostly pro-Confederation, said that parliament is the people and parliamentary resolutions are enough. John Mercer Johnson of New Brunswick remarked: "The legislature when they meet are the people, and they have the power to deal with all questions that may occur during their existence. They are the people for all legislative purposes." David Christie of Canada said: " Submitting a statute to the popular vote in order to give it force of law is unheard of in British constitutional practice." Many, many others agreed with the sentiment that direct consultation was simply "un-British."
But an appeal to tradition is a very weak appeal, and the parliamentary party buttressed their argument with criticism of what they called unbridled democracy, mob rule, or extreme democracy. They had in mind, and many could recall, the populist excesses of Papineau and Mackenzie in 1837. Thus Sir John A. remarked:
Sir, a reference to the people – a direct reference to the people – of a question of this kind may be the means by which a despot, an absolute monarch, may get that popular confirmation and approval which he desires for the laws necessary to support a continuation of his usurpation. It may be the means by which a despot, at the point of the bayonet, may ask the people to vote yea or nay on a measure he proposes; but in every free country where there is a constitution at all, the vote must be taken by the constituted authorities, the representatives of the people, and not become a mere form and cover to tyranny, but a measure which accords with the calm and deliberate judgments of the people, as expressed through their representatives.
We note in passing not only that Macdonald sought "the calm and deliberate judgements of the people, as expressed through their representatives," but that the judgement of the people was final.
Moreover Macdonald was suspicious of direct consultation because a referendum cannot represent the people or their calm and deliberate judgement. All it can do is represent the majority of the moment – what older contemporaries, J.S. Mill and Tocqueville, feared as the tyranny of the majority. In contrast, parliament protects all the people by protecting the opposition as well as the ministry. Here is Macdonald's description of the proposed federal parliament:
We will enjoy here that which is the great test of constitutional freedom – we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy that the rights of minorities are regarded.
The minorities Macdonald was concerned with were political minorities, not religious, or ethnic or vis-min minorities, and parliament, he says respects minorities better than referendums. Better to make constitutions by parliaments, he says – to say nothing of ordinary legislation – because parliaments better respect the opposition, and so better respect the sovereign people.
So there are the two sides. The one fearing the destruction of existing liberties if the new constitution is adopted, the other promising that liberties best will be protected if this same constitution is adopted. The one appealing directly to the people because a revolution is happening, the other appealing to parliament because it is the best way to forestall the disorder of violent revolution.
Machiavelli once said: "a country that is compelled to change its constitution is unhappy." In the present context we must wonder whether the appeal to direct democracy today is akin to the appeal of 90 years ago: the present constitution has usurped liberties and must be changed; the present constitution cannot make visible and reconcile our interests and our pride. On the contrary, it is a source of shame and frustration. If, indeed, British Columbians or Albertans do feel that way, then the only remedy is Locke's "appeal to heaven," which as Gilbert and Seymour well knew from the words just quoted, meant revolution.
That is, perhaps, the only remedy for the usurpation of liberty. Readers of Donald Savoie's Governing from the Centre or those who have read the report of the "Citizens Forum on Canada's Future" will know a case can be made that liberties have been usurped. The only question is: can a change of regime in the direction of direct democracy restore them? Or will it lead to precisely the kind of tyranny that Macdonald feared? These are questions for citizens, not political scientists, to consider, even though an answer can appear only in the hard realm of political action, where many sparrows fall.
[Contents]
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