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The Governance Corner

A forum for discussing issues in Independent School governance in the third decade of the 21st Century

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Governance, the Senate, and Partisan Politics

1/30/2014

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This has been an interesting week for governance in Ottawa. There has been much discussion over the decision by Justin Trudeau to "depoliticize" Liberal members of the Senate. Unfortunately, people appear to have become fixated on the party labels while missing what might prove to be a more profound shift back to the structure and process envisioned by the framers of the BNA Act (now the Constitutional Act 1867). Last week I wrote about how we have been moving away from the fundamental principles of responsible government in the House of Commons. The Senate, by contrast, has never been a creature of responsible government and was never intended to be one. While the PM and Cabinet serve at the pleasure of the House, and can be defeated in a motion on non-confidence, the Senate was designed to be one step removed from this process. A defeat of a government bill (even a money bill) in the Senate has no impact on the status of the government of the day. The partisan wrangling (epitomized by Question Period each day) of the House, had no purchase in the Senate. In its place, in this chamber of "sober second thought", Senators were intended to research the issues involved and improve the quality of the legislation that was submitted to it. In addition, as in the United States, the regional balance of the Senate was intended to protect the smaller provinces from the "rep by pop" dictatorship of the majority.
Under our constitution, Senators are "summoned" by the Governor General to serve in the Senate. In practice, this has meant that she or he receives a list of appointees from the Prime Minister of the day which is then automatically ratified and proclaimed. The result, particularly in the modern era, has been to see the Upper House get stacked with party faithful, failed candidates, and fundraisers who are beholden to one political party or another for their livelihood.

As a result, rather than an independent body, the Senate began to morph into little more than a rubber stamp of legislation on behalf of the Cabinet. Ultimately, as soon at Senate votes began to get "whipped" on partisan grounds as dictated by the government of day in the House of Commons, both of the fundamental duties of the Senate - to be an impartial, well-informed sounding board, and to protect regional interests - were lost. It simply became a redundant extension of the House of Commons, a waste of time and money.

So, from a governance standpoint, what is to be done? Luckily for us as Canadians, the three major political parties have offered us three distinct models: outright abolition; further politicization through democratizing the selection process; or, a reboot of the Senate back to its original operating parameters.


The first choice, abolition, is simple (however not "easy" constitutionally). Eliminate the Senate and you eliminate all abuses - real or perceived. Unfortunately this option conveniently ignores the original purposes of the Upper House to provide both balance and regional security. It is interesting that in the United States, the Senate has emerged as the more powerful of the two Houses as it gives equal voice to all regions of the country and necessitates regional compromises to make it work.


The second choice, democratization, is tempting. After all in the 21st century why are we talking about a 19th century appointed legislative body? The answer, again may lie to the south. Two elected Houses, working at cross purposes, could easily paralyze government. In addition, you would create a true crisis in responsible government in which the executive would need "double majorities" to remain in power. The current government came to power on a promise to democratize the Senate. Under the current constitution this is a relatively simple thing to do, in that the Constitutional Act is silent on how the list of whom is to be "summoned" by the Governor-General is created. Regional elections could be held to populate the list, as was done by Brian Mulroney when, in 1990, he recommended that Stan Waters be appointed to the Senate after he had won a Senate nominee election held by the Alberta government the previous year. In 2004, Alberta again elected a slate of nominees, one of them, Bert Brown, was named to the Senate in 2007. He has been the only "elected" Senator out of the 57 Senate appointments recommended to the Governor-General by the Harper government. Had the current government chosen to do so, by now a majority of the Senators in Ottawa would have been elected. The fact that they aren't, is a recognition of the issues surrounding democratization mentioned above.


Yesterday, the country was presented with the third option - a reboot of the original conception of the Senate. The intent of Trudeau's action was to uncouple the Senate from the political apparatus of the House of Commons. Many commentators and politicians have sought refuge in the old canard (pun intended) "if it looks like a duck and quacks like a duck, it's still a duck". And, needless to say, you can't change the political stripes of a Senator simply by rebranding. However, that is not the point. For the Senate to work the way it is supposed to, its members cannot receive their marching orders from political masters in House of Commons. Cutting those ties is a critically important step to restoring the Senate to its original purposes. If the Conservative Party were to follow suit it would give a clear message to Canadians that there is a sincere desire for change that cuts across partisan lines.


Finally, given the barriers and pitfalls inherent in both abolition and democratization, the second phase of the Liberal proposal, to create a truly non-partisan appointment process, is perhaps the most constitutionally and logistically practical path to pursue in the medium term. Couple this with an agreement on the extent to which the Senate could legitimately slow down the legislative process before the elected House of Commons had an automatic over-ride and you might have the makings of a productive compromise that would serve the country well.


When I was growing up, my high school ascribed to the Latin motto- Facta non verba - "Deeds not Words". We have talked about this long enough. I, for one, am happy that someone is actually trying to do something about it!

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Radical Jack and the death of Responsible Government

1/16/2014

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There has been lots of government publicity recently about significant upcoming celebrations marking such anniversaries as the Charlottetown Conference (150 years ago); and, the beginning of World War I (a century ago this summer). Noticeably absent, however, has been a commemoration of one of the most significant milestones in Canadian constitutional development. Next month will mark the 175th anniversary of the Durham Report on governance in the Canadas (East and West). Lord Durham (known in his day as "Radical Jack") recommended that the colony adopt a form of responsible government under which the Executive Council (our modern day Cabinet) would be responsible to the Legislative Assembly. One historian has called the Durham Report the "Magna Carta" for parliamentary democracy in Britain's overseas colonies and it enshrined the concept of Ministerial responsibility and accountability in Canadian parliamentary tradition.
The concept is simple. Ministers of the Crown have a two-fold level of responsibility and accountability. Firstly, they are answerable to Parliament for all policies, procedures and actions taken under the auspices of the portfolio. Secondly, as previously articulated by the current government in Accountable Government: A Guide for Ministers and Secretaries of State (2006), ministers are responsible for "the actions of all officials under their management and direction, whether or not the ministers had prior knowledge." And, in fact, the Conservative Government has used this very responsibility in the past to justify not allowing staff members to testify in front of House of Commons committees. It was their argument that the Minister and the Minister alone was responsible for all actions taken by their staff. Behind this shield, the details of the work of political staffers became opaque and were protected from scrutiny.

A research study was commissioned by Parliament in 2007 on Clarifying the Doctrine of Ministerial responsibility as it applies to the Government and Parliament of Canada. Author David Smith outlined the history and parameters of ministerial responsibility and its meaning for good governance.

He notes that by statute: Ministerial responsibility is the hinge of the Constitution. Individually and collectively, ministers are the conduit between the people's representatives and the Crown in whose name government is conducted...
He goes on to quote Governing Responsibly: A Guide for Ministers and Ministers of State (2003) published by the Privy Council Office (PCO):
Individual ministerial responsibility is "personal" not "institutional". It is shared with no one. "Ministers must respect the non-partisan nature of the Public Service of Canada...Ministers are individually responsible to Parliament and the Prime Minister for their own actions and those of their department, including the actions of all officials under their management and direction, whether or not the Ministers had prior knowledge," and that "clear ministerial accountability to Parliament is fundamental to responsible government."

He goes on to state that: It is no coincidence that debate today over ministerial responsibility is taking place at a time when there is strong criticism of prime ministerial power and the rigid party discipline that makes it possible. Much is said about the failure of the House and its members to speak for or be responsive to public and constituency opinion...the lack of attention to accountability as an overriding goal of our political system has resulted in many citizens choosing to opt out of the political process.


So where are we on the 175th anniversary of the Durham report? It would appear that we have regressed back to the Family Compact days of the 1830s. Members of the House of Commons have little or no public control over the actions of Ministers and are often left defending the indefensible to their constituents at home.  In 2011, the current government quietly changed the guidelines for Ministerial responsibility to say "Ministerial accountability to Parliament does not mean that a minister is presumed to have knowledge of every matter that occurs within his or her department or portfolio, nor that the minister is necessarily required to accept blame for every matter." It's kind of a "four legs good, two legs better" rewrite of the principle of responsible government.


This erosion of the principles of good governance should be of concern to everyone. We see evidence of it in the non-responses by Ministers in Question Period and the lack of accountability to Parliament for the machinations of participants in the Senate scandal. A determination of criminality by the RCMP should not be our benchmark for determining moral and ethical responsibility by "officials under the direction and management" of members of Cabinet.

On February 11, 1839,  the Report on the Affairs of British North America, authored by John "Radical Jack" Lambton, 1st Earl of Durham was tabled in the British Parliament. Our deliberate drift away from the fundamentals of responsible government may explain why it is not high on the official "celebration" list this year, but it should be a time of reflection for all of us on the principles upon which this country was founded.






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This has been a year from hell for good governance

1/2/2014

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I confess, I'm a politics junkie. And, like everyone else, I got totally caught up this year in reading, watching and listening to the daily airing of allegations, rumours, pointed questions and obfuscating defences, that has become the lifeblood of the Canadian political scene.
Whether it was the revelations to the Charbonneau Commission that drove sitting mayors from office; the Rob Ford Gong Show; the Robocalls finger-pointing; or the relatively small potatoes Senate scandal with its massive, resultant PMO-orchestrated coverup campaign, the public became mesmerized - not by the issues of the day, but rather by the unveiling of a political culture that appears to have gone off of the rails. As citizens, it has become clear that we have been cheated, lied to, and manipulated by a small group of public servants who chose to put their own egos and personal gain ahead of their responsibility to society at large. In response, we have all created our own personal rogues galleries of villains and fools, clucked our tongues and shouted from the rooftops to "throw the bums out".

Unfortunately in these days of the 140 character tweet, discussions of these issues, while extensive, have tended to be shallow and glib. By focusing on the "who knew what when" details of events, we haven't taken the time to sit back and wonder how, in a mature democracy like Canada, these things could have happened in the first place. What it comes down to is a failure of the basic duties of good governance.

So, here is my question, if our elected officials  had followed, and our institutional structures had been designed to protect, these three basic tenets of good governance, would we be in this mess?

1. The Duty of Knowledge demands that all members ensure that they have all the possible information at hand to make a responsible and informed decision on the issues. The goal of this kind of monitoring is for the elected representatives (MPs, MPPs, MLAs, Councillors, etc.) to hold the Executive (Cabinet, Mayor) accountable for the effective management of government services. Awareness of long term trends and patterns as well as statistical comparators with other jurisdictions protect the Members and the leadership from making knee-jerk reactions to changing circumstances. In addition, a solid command of the data makes it easier for representatives to inform their constituents.  In the final analysis, the more a legislator knows, the better she or he can do her or his job.This is the governance lesson that Kevin Page, the former PBO, tried to teach in Ottawa for the past five years;

2. The Duty of Care and Diligence is a prime requisite of any legislator. Practically speaking, this means that each representative must exercise a level of care with respect to the performance of their responsibility including: reviewing the agenda/order paper and support materials prior to any meeting; attending all scheduled sessions and committee meetings; arriving prepared to discuss the issues on the table in a reasonable and informed fashion; and being ready to take a clear position - and vote - on any matters put before them (with the exception of those areas of possible conflict of interest). In addition, it has been established through Common Law that a legislator must "perform his [sic] duties...with a degree of skill that may reasonably be expected from a person of his knowledge and experience". Furthermore it is expected that with respect to diligence that the legislator exercise "such care as an ordinary man might be expected to take on his own behalf." This is a dual subjective and objective test, and one deliberately aimed to ensure personal accountability and "sober second thought". And, finally;

3. The Fiduciary Duty of all representatives is to act honestly and in good faith; to be loyal to and act in the best interests of the nation (province, municipality); to avoid any conflict of interest; and to subordinate every personal [and party] interest to those of the general public.

It is hard to imagine that, if all legislative bodies and their members were to follow these three basic duties that we could ever have had a year like the last one. Mayors who lined their pockets or lied to their constituents; Senators who claimed (and double-claimed) fraudulent expenses; a PMO that tried to scuttle a legislative inquiry and cover-up potentially illegal acts to protect a fundraiser; Parliamentary committees that were given inaccurate financial information upon which to make key decisions; political aides who shredded documents to thwart an inquiry; municipal, provincial and federal policies and positions designed not for the greater good, but for political advantage as wedge issues to woo segments of the voting public...need I go on?

The only good thing that we can say about governance in the past year is that, thanks to some of our processes for oversight such as Elections Canada and the RCMP, we are gradually learning about other troubling governance issues such as attempts at voter suppression and electoral fraud and over-expenditure.

So what is my New Year's resolution with respect to demanding more vigilance on Governance? My motto in dealing with all levels of government this year is a quote from Lieutenant-Commander Montgomery Scott (aka Canadian Jimmy Doohan): "Fool me once, shame on you. Fool me twice, shame on me!"


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    Author

    Dr. Jim Christopher
    has been working with Boards and Heads on Governance issues for the past 15 years. He is a former Superintendent of Schools, ED of the Canadian Association of Independent Schools and Canadian Educational Standards Institute and is the author of a number of books and articles of education and governance. His latest book, Beyond the Manual: A Realist's Guide to Independent School Governance is available on iTunes or at https://www.smashwords.com/books/view/388729

    View my profile on LinkedIn
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