Tuesday, December 4, 2012

Democracy Gets Thrown under the Omnibus Again

One of the latest controversies to hit Parliament Hill is the Harper Government's use of so-called omnibus legislation.  The latest incarnation is Bill C-45, a budget omnibus bill that is a sequel to Bill C-38, the omnibus bill the Conservatives passed in the Spring after delivering their budget.

Bill C-45 is 457 pages long and will amend a number of pieces of legislation.   As with Bill C-38, the opposition has objected to both the size and the scope of the bill.  One major paper has called it "an affront to democracy".  Some other news outlets have been more or less silent, or have simply referred to it as "sparking profound changes".

Finance Minister Jim Flaherty has suggested there are "no surprises" in Bill C-45, that the opposition simply failed to read the budget over the summer, and that Parliamentarians should now do the job they are paid to do and dutifully pass the legislation.  NDP critic Nathan Cullen has stated that doing their job is exactly what the opposition wants to do.  Who has the right of it?

The Legislative Process

In order to understand the controversy, it is important to understand a little bit about the legislative process, and the passage of omnibus and budget bills.

To become law, legislation must first be introduced to either the Senate or the House of Commons as a bill. Once it has been read in the house twice, it is referred to committee for detailed study.  The nature of the bill determines which committee it is referred to.  A budget bill is typically referred to the Finance Committee, while a bill dealing with, for example, Aboriginal Peoples, would go to the standing committee on Aboriginal Affairs.  After detailed study, a committee refers the bill back to the House, often with proposed amendments. 

Committees are where much of the real work of Parliament is done.  They review legislation in more detail, hear from experts on the topic, and interest groups representing those who will be primarily affected by legislation.  Based on this input, they are able to recommend often vital changes to the proposed legislation.

Omnibus Bills and Budget Bills

Omnibus Bills themselves are nothing new.  New laws often have to make changes to a number of related pieces of legislation, and omnibus bills such as the Criminal Law Amendment Act of 1968-69 made major changes to the criminal law in Canada by amending several pieces of legislation.  The important thing is that it was all on a related topic.

Budget Bills also typically contain amendments to several pieces of legislation, such as the Income Tax Act and other statutes, in order to carry out the provisions of the budget.  These changes are usually primarily administrative, and relate directly to budget implementation.

Problems with Omnibus Budget Bills

Where Omnibus bills become problematic is when they try to amend large amounts of unrelated legislation, because they avoid allot of the oversight, legislative scrutiny and democratic debate that is necessary to ensure legislation is well thought out and well drafted.  For example, Bill C-38 last Spring contained major amendments to the Fisheries Act, and completely revamped the Canadian Environmental Assessment Act.  Normally, these types of changes would be reviewed by the standing committee on Fisheries and Oceans and Environment and Sustainability respectively.  However, because they were tacked on to a budget bill, they were reviewed by the Finance committee only, which has neither the time nor the expertise to properly review these major legislative changes.

Similarly Bill C-45 contains major amendments to several pieces of legislation, including important protections in the Navigable Waters Protection Act.  Some of these were never mentioned in the budget.  This time, the Conservatives backed down slightly and agreed to allow 10 House of Commons committees to review the omnibus bill..  However, some of these committees were only able to meet for a day.  Further, the government stated they would only be willing to entertain amendments to the bill if they were not "contrary to government policy".  Of over 1,700 amendments proposed by the opposition in committee, the government voted down every single one, meaning in reality they were opposed to any amendments at all. 
Without the power to recommend specific amendments to the bill, the committee power of review is rendered fairly toothless.

Another problem is the sheer size of the Bills.  Both Bill C-38 and Bill C-45 were over 400 pages, yet the government quickly moved for closure on debate, meaning major changes were made to several different Canadian laws with very little debate in the House of Commons at all.  Debate on Bill C-38 lasted 22 hours, much of which was spent defeating proposed amendments.  Debate on Bill C-45 lasted just over 6 hours.  This is simply not enough time for meaningful debate on legislation of this scope.

Finally, votes on budget bills are considered a confidence vote: if the government loses the vote, it is a motion of non-confidence and the government falls.  Backbenchers in the Conservative caucus, who normally have some freedom to vote against government bills if they don't agree with them, generally feel they have to vote for the budget.  So a backbencher who has serious trouble with, say, some of the changes to the Fisheries ACt, nonetheless has to vote for it because its a budget bill.

The end result of this is that some of our vital democratic safeguards in the legislative process are being short-circuited.

The Use and Abuse of Omnibus Bills

The Liberal governments of Jean Chretien and Paul Martin were notorious for using omnibus legislation, although they were hardly the first.  Stephen Harper, as opposition leader, validly objected to the Liberals use of omnibus legislation calling it undemocratic and "a contradiction to the conventions and practices of the House.” However, as a Prime Minister, Stephen Harper has taken the use of omnibus legislation to a whole new level, as Bill C-38 and Bill C-45 demonstrate.

The government has concocted the argument that all of the Omnibus Budget amendments are related to the "Jobs" and "Growth" and therefore budget measures that need to be passed expeditiously.  That is, quite frankly, an insult to the intelligence of the Canadian public.  Of course most legislative changes are related to the Economy, in the same loose sense as most of them are related to "Democracy".  What matters at the end of the day is whether legislation is getting scrutinized in a way that ensures it is fair, democratic, and effective.  In the case of the recent omnibus budget bills, it isn't.

Obviously, there is a need to balance democratic process with legislative efficiency.  However, this government is nowhere near to striking the right balance.  So while Minister Flaherty claims that MP's are simply "not doing their job" by "not reading" his budget, in reality, his government is going out of their way to ensure Parliament can't do its job properly. Like my earlier post on prorogation, omnibus bills are yet another example of a way in which Canadian governments are undermining the role of Parliament, and with it, our whole system of Parliamentary democracy.  Regardless of whether they support this government and its policies or not, that is something all Canadians should be concerned about.

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