Curbing authority, the old-fashioned way

Donald Savoie's new book on the breakdown of government in Canada will leave you both wiser and more worried. It's a worthwhile trade-off. But please also leave room on your bedside table for Jean Louis de Lolme's The Constitution of England. Not quite so hot off the presses; my final edition dates to 1784. But when a book this old is this relevant to modern problems you may be sure its author, too, got the fundamentals right. As the Citizen reported Monday, Mr. Savoie's central concern is that we now have "prime ministers who rule like monarchs surrounded by a tight circle of courtiers." In that sense Canada today resembles Britain eight hundred years ago, when the "curia regis" or king's personal court combined legislative, executive and judicial functions in a system as devoid of effective checks as of formal procedures. But if the problem is familiar maybe the solution is, too.

It was not easy to make the executive accountable under the rule of law without crippling it. But it was accomplished. Due to legislative control of the power of the purse, the otherwise formidable Crown in 18th century England was, as de Lolme put it, "like a ship completely equipped, but from which the Parliament can at pleasure draw off the water, and leave it aground -- and also set it afloat again, by granting subsidies."

This exclusive power of Parliament to levy taxes, which amazingly dates to the late 13th century, remains the core of its power in Canada today. Surely it's worth trying an old remedy before adopting some novel expedient that might, instead, prove to be an old mistake.

Here I must cite de Lolme's argument that another enormous advantage of the British system was its concentration of the executive power in one place so the legislature, and the people, could know where trouble was coming from and correct it by yanking on the purse strings. For that reason it is hazardous not only to create a proliferation of entities here in Canada, and in Britain, that seem to be neither executive, legislative nor judicial, but even to divide the executive branch into independent parts.

I do not understand contemporary protests against cabinet control of executive agencies. If we cannot punish the ministry for arrogance, sloppiness or overt wrongdoing in government, what are we supposed to do about it? Just turn them loose and hope power doesn't corrupt this time? And so I confess to unease at Donald Savoie's proposal to give various parts of the executive more clearly defined legal personalities. The current system of blame-shifting may remind one of the Yes Minister sketch about the distinctions between policy, administration, the policy of administration, the administration of policy and finally the administration of the policy of administration versus the policy of the administration of policy. But making it worse won't make it better. Here I say de Lolme trumps Savoie.

The Constitution of England is a bracingly fundamental book, from its defence of a divided legislature to its reminder that the separation of powers is no more an American conception than free speech. It is sobering to reflect that the system of checks and balances it persuasively describes may be incompatible with the volume of legislation we now seek from government. During the New Deal smart young things in the United States objected to a "horse and buggy" Constitution in an automobile age and boasted that they would sweep away restraints on executive power.

Well, it happened here too, and it doesn't look so clever any more. I wish some grounds existed for thinking those involved in the creation of the modern Canadian constitution, not just the appalling Constitution Act of 1982 but the entire structure of modern governance, had any acquaintance with de Lolme's or any other book on the merits of the existing system.

I don't want to wax nostalgic here. De Lolme's "Advertisement" in the 1781 edition complained that he might as well have used the manuscript to boil his tea-kettle for all the support he received in publishing it at the time. However it now is available for just $12 from Liberty Fund and I urge everyone who cares to buy it.

You'd get your money's worth just from this warning, as familiar to the American Founding Fathers as it is lost today: "If the Crown had been allowed to take an active part in the business of making laws, it would soon have rendered useless the other branches of the Legislature." The Crown's position is, of course, a legal fiction today, but essentially it is exactly what has happened to us.

So read Savoie. Then turn back the clock to 1784 for some very contemporary advice.

[First published in the Ottawa Citizen]