Journalist Robert Fulford has called Canada a "postmodern dominion". The key to postmodernism, according to Fulford, is the absence of a master narrative and the questioning of any notion of a coherent, stable, autonomous identity. "What," he asks, "could be more Canadian than that?" A comforting thought--that the Canadian condition of perpetual identity crisis is really the cutting edge of an increasingly global condition of indeterminacy and incertitude.
Perhaps such an analysis could put Paul Martin's style of leadership in a new, more favourable light. Instead of the Economist's deprecation of Paul Jr. as "Mr. Dithers," he could be likened to some French post-structuralist philosopher like Jean Francois Lyotard or even Jacques Derrida, whose famous essay "Structure, Sign and Play in the Human Sciences" explained that meaning is constructed by the (inter) play of signifiers--and not rooted in any more fundamental structural Reality. The role of understanding is one of "deconstruction" of these supposed meta-narratives, exposing them for what they really are--just words, the "play of signs".
Keeping that in mind, here's here's a deconstructive meta-reality check of what is going on in the Liberal campaign:
1. Climate Change, Greenhouse Gases, and Hot Air. Mr. Martin's greenhouse gas hypocrisy certainly shows a French/European flair. Considering the Europeans' contempt for the United States and George Bush for not embracing the Kyoto Protocol, you'd expect that they would have made major reductions in greenhouse gas emissions -- the purpose of Kyoto. Well, not exactly. From 1990 (Kyoto's base year for measuring changes) to 2002, global emissions of carbon dioxide (CO2), the main greenhouse gas, increased 16.4 percent, reports the International Energy Agency. The U.S. increase was 16.7 percent, and most of Europe hasn't done much better. And Canada? Since 1990, our greenhouse gas levels have risen 23.6 per cent ! (Yeah, but we hosted the recent conference. We signed the treaty.) The Liberal campaign strategy is to drive a wedge between themselves and the Conservatives on the issue of standing up to the Americans, realities on the ground--or in the air--be damned.
2. Foreign Aid. Mr. Martin, like all Liberals, loves to take a bow for the great Pearsonian tradition of diplomacy, which includes Canada's 40-year-old proposal that wealthy countries dedicate 0.7% of their GNPs to foreign aid for developing countries. Rock superstar and political activist Bono said that he was "crushed" by Canada's disappointing performance, given the crisis in Africa, Canada's fiscal position and history of leadership. No matter--Bono has already served his purpose, having adorned the Liberal convention and provided numerous photo ops with the Prime Minister. In reality, of course, Canada's allocations for foreign aid fell precipitously during Mr. Martin's long tenure as finance Minister, declining 37% in real terms between 1992 and 2000 and reaching a 30-year low of 0.27% in 2000--a period during which 13 OECD countries increased their commitments to overseas development assistance (ODA), and only Finland cut more deeply into ODA than did Canada.
The Canadian Council for International Co-operation reports that this sharp decline has been reversed since 2002, and that annual increases of 8% have been locked in until 2010. Even so, Canada's commitment will have fallen from 0.45% of GNP in 1990 to a projected level of 0.33% in 2010. This will be $7 billion short of Canada's fair share (3%) of the world's estimated global ODA needs of $50 billion. The Government of Canada has consistently refused to set out a timetable for the achievement of the 0.07% UN aid target. The Liberal strategy is to neither shit (which would mean spending more than twice as much money) nor get off the pot (which would mean surrendering the symbolic "moral high ground"), and that suits Mr. Martin just fine.
3. The Democratic Deficit. This one is my favourite. During his campaign for the Liberal leadership, whenever Paul Martin was pressed to identify what most distinguished his policy orientation from that of Mr. Chretien he would refer to Canada's "democratic deficit" and the need to modernize and reform Canada's political institutions. Unfortunately this must just mean tinkering with parliamentary procedure, because Mr. Martin is dead set against any kind of proportional representation for the House of Commons. (Where would his chances of a majority government be then?). He also appears to be uninterested in reforming the Senate. Indeed, judging from his most recent batch of Senate appointments, he is opposed to even changing the way Prime Ministers dole out patronage and political favours. It would be constitutional for the Prime Minister to de facto delegate half of his Senate nominations to Premiers and Opposition parties, and to start paying Senators on a per diem basis, according to how much work they do. But that sounds awfully radical, and if his recommendations to the Governor- General for Senators were based upon suggestions from political opponents, those mischievous people might actually recommend elected Senators. Perish the thought!
On all of these issues, and several more (gun violence, corruption/culture of entitlement, safeguarding public healthcare from privatization, for instance) the credibility gap between what this government says and what this government does has continued to widen. But in a steadily expanding, free-floating, post-modern Liberal universe, isn't that how things are supposed to be?
Tuesday, December 27, 2005
Thursday, December 22, 2005
Interactions: Trade Policy and Healthcare Reform After Chaoulli v. Quebec
The following is an abstract for the peer-reviewed article, "Interactions: Trade Policy and Healthcare Reform After Chaoulli v. Quebec," Healthcare Policy, Vol.1, No.2 (January 2006).
To view the article in its entirety, readers are advised to visit a good university library in their vicinity, or go to http://www.healthcarepolicy.net.
Interactions: Trade Policy and Healthcare Reform After Chaoulli v. Quebec
Is it time for Canada to acknowledge the fragile boundary between health and trade policies and strengthen the separation between private-and public-health insurance?
Abstract
The insulation of Canada’s healthcare system from trade treaty obligations is crucial to the legitimacy of Canada’s trade policy. Legal analysis has suggested, however, that competitive and for-profit delivery of the kind contemplated by the Kirby Report and some provinces may make healthcare more vulnerable to challenges under NAFTA and GATS. The Government of Canada has tried to counter this interpretation by stressing the importance of public financing as the principal criterion for exemption of healthcare from trade treaties, but now the potential for private funding of essential medical services indicated by the Supreme Court’s decision in Chaoulli v. Quebec has made that line of argument look risky as well. It is apparent that Canada failed to anticipate the possible interactions of domestic, international and constitutional law when it made commitments in the area of private health insurance at the WTO in 1997. Accordingly, the time has come to acknowledge the fragility of the boundary between health and trade policies, to take the risks and costs associated with trade treaty obligations fully into account when undertaking healthcare reform and to strengthen the separation between private and public health insurance.
To view the article in its entirety, readers are advised to visit a good university library in their vicinity, or go to http://www.healthcarepolicy.net.
Interactions: Trade Policy and Healthcare Reform After Chaoulli v. Quebec
Is it time for Canada to acknowledge the fragile boundary between health and trade policies and strengthen the separation between private-and public-health insurance?
Abstract
The insulation of Canada’s healthcare system from trade treaty obligations is crucial to the legitimacy of Canada’s trade policy. Legal analysis has suggested, however, that competitive and for-profit delivery of the kind contemplated by the Kirby Report and some provinces may make healthcare more vulnerable to challenges under NAFTA and GATS. The Government of Canada has tried to counter this interpretation by stressing the importance of public financing as the principal criterion for exemption of healthcare from trade treaties, but now the potential for private funding of essential medical services indicated by the Supreme Court’s decision in Chaoulli v. Quebec has made that line of argument look risky as well. It is apparent that Canada failed to anticipate the possible interactions of domestic, international and constitutional law when it made commitments in the area of private health insurance at the WTO in 1997. Accordingly, the time has come to acknowledge the fragility of the boundary between health and trade policies, to take the risks and costs associated with trade treaty obligations fully into account when undertaking healthcare reform and to strengthen the separation between private and public health insurance.
Truth or Consequences? The Law and Politics of the GATS Health Care Debate
This posting includes an abstract and introduction to the peer-reviewed article,
"Truth or Consequences? The Law and Politics of the GATS Health Care Debate," Canadian Foreign Policy, Vol. 12, Nol. 2 (Fall 2005), pp. 97-133. To download the full text in pdf format, or read the entire article online, go to http://www.carleton.ca/cfpj/
TRUTH OR CONSEQUENCES?
THE LAW AND POLITICS OF THE GATS HEALTH CARE DEBATE
Mark Crawford
Abstract
The debate between critics and defenders of the General Agreement on Trade in Services (GATS) has drawn attention to the GATS, prompted greater government efforts at consultation, challenged the democratic legitimacy of the WTO, and led to an exploration of possible interpretations of GATS clauses that could impact on health and social policy. The article argues that defenders of the GATS are probably correct in their legal interpretations of the key protections of policy autonomy contained in the Agreement, most notably the Article 1:3 “governmental authority” clause. That is not the whole story, however: maintaining the conditions of policy autonomy in the health care sector will prove increasingly difficult in a liberalized trading environment.
Introduction
The Uruguay round of international trade negotiations that created the World Trade Organization (WTO) and the General Agreement on Trade in Services (GATS) not only extended international trading rules to services, an area that was mostly excluded from the General Agreement on Trade and Tariffs (GATT), but in so doing, actually redefined the scope of the international trade regime in a novel way to include not just traditional cross-border trade, but also three non-traditional modes of supply.[1] This suggested the potential for liberalization of health insurance and other health services, as well as escalating transformations of the broader economic, political, and regulatory context of health care. It is, therefore, unsurprising that the launch of the WTO’s initial round of negotiations under the GATS in February 2000 occasioned a good deal of critical commentary from Non-Governmental Organizations (NGOs) concerning the possible deleterious impacts of multilateral trade liberalization on public health systems and other public services. Predictably, trade negotiators representing Canada and most other countries have rejected many of the criticisms as being misinformed, speculative or alarmist.
How well public health care systems can be insulated from the effects of international trade agreements has become a litmus test for judging globalization in liberal welfare states worldwide. It has also been an especially important basis for evaluating Canadian services trade policy. Medicare is Canada’s most cherished and expensive social program, and its protection – including its express exemption from any offers Canada might make to liberalize services – is a high priority. Ministers of International Trade have repeatedly reassured Canadians since the formulation of Canada’s initial GATS bargaining position in 2000-2001 that health care is off the table.
Each side of the GATS health care debate is concerned with different aspects of Canada’s policy autonomy. For GATS defenders in the Canadian government and foreign policy community, the maintenance and extension of Canadian influence during the WTO’s formative stages is crucial. In order to capitalize on Canada’s comparative advantage in many service sectors, and for Canadian officials to continue to “punch above their weight”, Canadian interests must be actively asserted in the GATS negotiations. GATS critics, on the other hand, are far more worried about the potential threats to domestic policy autonomy to set and effectively enforce health and social policy standards, and about the democratic legitimacy of allowing the WTO to constrain elected national lawmakers.
Although a decade has passed since the inception of the WTO and the GATS, the debate continues to be conducted under conditions of extreme uncertainty. The thrust of many expressions of concern from civil society, labour, municipal, health, and education groups has been to urge caution on the part of the federal government, to advise the government not to make any commitments (even in apparently ancillary or unrelated services), nor to actively pursue GATS negotiations until there can be greater certainty about the consequences. The typical response on the part of trade ministers and officials has been to reiterate expressions of confidence about negotiated protections of health and social policy, and to point out that whatever certainty eventually does arise from the GATS/WTO negotiations and subsequent dispute settlement processes should reflect Canada’s interests having been vigorously represented at the bargaining table.
Underlying these contrasting attitudes toward autonomy and uncertainty is the common assumption that the debate turns on the likely legal interpretation of specific GATS provisions by future WTO dispute panels. While this legal discussion – in which critics and defenders of trade liberalization typically exchange very different interpretations of what the GATS and its various provisions will mean – is very important, a full understanding of what the liberalization of trade in services ultimately may mean for health policy requires that we also try to look to the broader political context. A formal legal analysis of Canada’s right to regulate cannot be expected to yield an appreciation of how a liberalized environment may affect various interests in society, or the choice and cost of health policy instruments. Nor can a public policy of relying on sectoral exemptions from trade treaty rules be expected to completely insulate Canadian health care from the effects of trade agreements.
This article seeks to clarify and advance the GATS debate through a mediation of law and politics. First, I examine the structure of the GATS debate, showing that a typical pattern is reliance by GATS defenders on the use of formal legal truth-claims, which do not fully respond to concerns about the implications of the GATS/WTO for policy autonomy and democratic legitimacy. This is not intended to deprecate the value of legal analysis, however. In the second section I try to show that the most recent and detailed work by legal academics can indeed be highly useful in reducing our uncertainty about some of the most contentious issues. I then conclude with a few observations about the tenuous nature of the legal separation between public health care and trade treaties, and how the GATS/WTO might be expected to affect decision-makers in the health policy community in the future.
[1] Thus, the GATS covers not just cross-border trade, such as (in the case of health services) provision of diagnosis or treatment planning services in country A by suppliers in Country B via telemedicine (mode 1), but also consumption abroad, e.g., movement of patients from Country A to Country B for treatment (mode 2); commercial presence in a country, e.g., establishment of, or investment in, hospitals in a country by foreigners (mode 3); and temporary presence of natural persons in a client/host country, e.g., service provision in Country A by health professionals from Country B (mode 4).
"Truth or Consequences? The Law and Politics of the GATS Health Care Debate," Canadian Foreign Policy, Vol. 12, Nol. 2 (Fall 2005), pp. 97-133. To download the full text in pdf format, or read the entire article online, go to http://www.carleton.ca/cfpj/
TRUTH OR CONSEQUENCES?
THE LAW AND POLITICS OF THE GATS HEALTH CARE DEBATE
Mark Crawford
Abstract
The debate between critics and defenders of the General Agreement on Trade in Services (GATS) has drawn attention to the GATS, prompted greater government efforts at consultation, challenged the democratic legitimacy of the WTO, and led to an exploration of possible interpretations of GATS clauses that could impact on health and social policy. The article argues that defenders of the GATS are probably correct in their legal interpretations of the key protections of policy autonomy contained in the Agreement, most notably the Article 1:3 “governmental authority” clause. That is not the whole story, however: maintaining the conditions of policy autonomy in the health care sector will prove increasingly difficult in a liberalized trading environment.
Introduction
The Uruguay round of international trade negotiations that created the World Trade Organization (WTO) and the General Agreement on Trade in Services (GATS) not only extended international trading rules to services, an area that was mostly excluded from the General Agreement on Trade and Tariffs (GATT), but in so doing, actually redefined the scope of the international trade regime in a novel way to include not just traditional cross-border trade, but also three non-traditional modes of supply.[1] This suggested the potential for liberalization of health insurance and other health services, as well as escalating transformations of the broader economic, political, and regulatory context of health care. It is, therefore, unsurprising that the launch of the WTO’s initial round of negotiations under the GATS in February 2000 occasioned a good deal of critical commentary from Non-Governmental Organizations (NGOs) concerning the possible deleterious impacts of multilateral trade liberalization on public health systems and other public services. Predictably, trade negotiators representing Canada and most other countries have rejected many of the criticisms as being misinformed, speculative or alarmist.
How well public health care systems can be insulated from the effects of international trade agreements has become a litmus test for judging globalization in liberal welfare states worldwide. It has also been an especially important basis for evaluating Canadian services trade policy. Medicare is Canada’s most cherished and expensive social program, and its protection – including its express exemption from any offers Canada might make to liberalize services – is a high priority. Ministers of International Trade have repeatedly reassured Canadians since the formulation of Canada’s initial GATS bargaining position in 2000-2001 that health care is off the table.
Each side of the GATS health care debate is concerned with different aspects of Canada’s policy autonomy. For GATS defenders in the Canadian government and foreign policy community, the maintenance and extension of Canadian influence during the WTO’s formative stages is crucial. In order to capitalize on Canada’s comparative advantage in many service sectors, and for Canadian officials to continue to “punch above their weight”, Canadian interests must be actively asserted in the GATS negotiations. GATS critics, on the other hand, are far more worried about the potential threats to domestic policy autonomy to set and effectively enforce health and social policy standards, and about the democratic legitimacy of allowing the WTO to constrain elected national lawmakers.
Although a decade has passed since the inception of the WTO and the GATS, the debate continues to be conducted under conditions of extreme uncertainty. The thrust of many expressions of concern from civil society, labour, municipal, health, and education groups has been to urge caution on the part of the federal government, to advise the government not to make any commitments (even in apparently ancillary or unrelated services), nor to actively pursue GATS negotiations until there can be greater certainty about the consequences. The typical response on the part of trade ministers and officials has been to reiterate expressions of confidence about negotiated protections of health and social policy, and to point out that whatever certainty eventually does arise from the GATS/WTO negotiations and subsequent dispute settlement processes should reflect Canada’s interests having been vigorously represented at the bargaining table.
Underlying these contrasting attitudes toward autonomy and uncertainty is the common assumption that the debate turns on the likely legal interpretation of specific GATS provisions by future WTO dispute panels. While this legal discussion – in which critics and defenders of trade liberalization typically exchange very different interpretations of what the GATS and its various provisions will mean – is very important, a full understanding of what the liberalization of trade in services ultimately may mean for health policy requires that we also try to look to the broader political context. A formal legal analysis of Canada’s right to regulate cannot be expected to yield an appreciation of how a liberalized environment may affect various interests in society, or the choice and cost of health policy instruments. Nor can a public policy of relying on sectoral exemptions from trade treaty rules be expected to completely insulate Canadian health care from the effects of trade agreements.
This article seeks to clarify and advance the GATS debate through a mediation of law and politics. First, I examine the structure of the GATS debate, showing that a typical pattern is reliance by GATS defenders on the use of formal legal truth-claims, which do not fully respond to concerns about the implications of the GATS/WTO for policy autonomy and democratic legitimacy. This is not intended to deprecate the value of legal analysis, however. In the second section I try to show that the most recent and detailed work by legal academics can indeed be highly useful in reducing our uncertainty about some of the most contentious issues. I then conclude with a few observations about the tenuous nature of the legal separation between public health care and trade treaties, and how the GATS/WTO might be expected to affect decision-makers in the health policy community in the future.
[1] Thus, the GATS covers not just cross-border trade, such as (in the case of health services) provision of diagnosis or treatment planning services in country A by suppliers in Country B via telemedicine (mode 1), but also consumption abroad, e.g., movement of patients from Country A to Country B for treatment (mode 2); commercial presence in a country, e.g., establishment of, or investment in, hospitals in a country by foreigners (mode 3); and temporary presence of natural persons in a client/host country, e.g., service provision in Country A by health professionals from Country B (mode 4).
Saturday, December 03, 2005
Will Access to Justice Be Restored in B.C.'s Northern and Rural Areas?
{The following is an unrevised version of the paper delivered to the joint meetings of the BC Political Studies Association and B.C. Studies at the University of Northern British Columbia in May, 2005.--MC}
The Legal System and Access to Justice in B.C.’s Provincial North
"The civil element (of citizenship) is composed of the rights necessary for individual freedom --- liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice. The last is of a different order from the others, because it is the right to defend and assert all one’s rights on terms of equality with others and by due process of law." –T.H. Marshall
Introduction
The past two decades have seen an expansion of the legal rights and legal consciousness of Canadians that goes well beyond the acquisition of specific new substantive and procedural guarantees contained in the Charter of Rights and Freedoms. Law’s ‘citizen-constitutive’ role has made debate surrounding competing models of legal aid and associated policies and institutions affecting access to justice all the more important. Links between the content of citizenship and access to justice have also made the application of neoliberal ideas to justice reform both extremely difficult and politically charged.
This paper looks at the delivery of legal services in northern and rural British Columbia in order to draw greater attention to a comparatively neglected aspect of these debates. Legal historians have described how resistance to the imposition of British law and legal ideology lasted longer in rural and northern areas than in southern population centres, and how the very notion that legal services were entitlements of citizenship came decades later to the North. To what extent has the postwar expansion of legal aid and court services and their subsequent curtailment and reform (as part of a worldwide retreat from universalism that is stressing the more effective management of limited resources and de-emphasizing the achievability of truly equal access to justice) impacted northern communities? What differences exist between legal service utilization patterns between northern/rural and southern/urban communities? What specifically regional dimensions are there to the politics and policy choices concerning access to justice? Finally, as British Columbia stands at a crossroads in the development of legal service delivery, we need to ask: which model is best suited to northern and rural B.C. communities?
1. Funding of Legal Aid and Delivery Models Prior to 1981
Legal aid prior to 1979 was run by the Legal Aid Society, administered in branch offices in cities throughout B.C. under the direction of the Ministry of the Attorney-General, who were billed by private members of the criminal bar. Some services (legal education and poverty law) were also funded by the Legal Services Commission of B.C. In 1978, the Legal Aid Society and the Legal Services Commission were amalgamated into the Legal Services Society.
In 1972, the federal government, through the Department of Justice Canada, had negotiated legal aid cost-sharing agreements with the provinces. The federal government committed to contributing approximately 50% of the cost of providing criminal legal aid services in each province. The program was meant to provide legal assistance to accused people who had little or low incomes and were charged with an offence for which incarceration was likely upon conviction or were facing extradition or were appealing a judgement relating to these types of situations. Aside from setting these minimal coverage goals, including coverage for young offenders facing closed or open custody, the cost-sharing agreements did not dictate eligibility criteria or how a provincial legal aid plan should provide services.
Provinces provide criminal legal aid services through different service delivery models — government-funded legal aid clinics and private practice lawyers paid a set hourly rate or a tariff per type of case. In British Columbia, certified members of the criminal bar billed the province, but this ‘judicare’model became more complicated after 1978, with tensions occasionally emerging between the judicare component (inherited from the criminal work of the Legal Aid society) and the ‘staff’ component inherited from the Legal Services Commission. This tension was apparent in many smaller centres, as the differing market conditions in northern and rural British Columbia sometimes led to a greater emphasis on the staff model, particularly with respect to civil matters (i.e. family, immigration, and poverty law, and legal education). In later years this tension would become more pronounced, as the New Democratic Party government moved toward regionalization of law offices and the creation of community boards for legal services as well as other social services.
2. The 1980s and 1990s: The Debate over Delivery Models
A watershed in the history of the delivery models debate was the 1981 Burnaby study. This was the first in a series of Canadian studies which purported to show that staff lawyers could deliver legal aid at less cost and with a similar quality of service compared with judicare in criminal law cases. Later studies, in particular the 1984 Department of Justice Evaluation of Legal Aid in B.C. and the 1987 Canadian Bar Association Discussion Paper, provided mounting empirical evidence and argument in favour of a larger staff component. Nevertheless, these conclusions were vigorously disputed by representatives of the private bar, who argued that data presented in these and other reports were skewed by their failure to take into account the less complicated nature of services provided by staff lawyers and the higher quality of service, and choice, provided by the private bar.
This debate has been well described and documented Albert Currie’s article on Legal Aid Delivery Models in Canada. What is not mentioned in Currie’s article, and not given extensive treatment in either the CBA Report or the Burnaby study, is the regional dimension of the data, which suggests that the arguments in favour of the staff model are stronger in rural and northern parts of the province, where the private bar tends to be less plentiful in relation to either demand or need. Deborah O’Leary, the Manager of the Prince George Branch Office since 1984, has stated that generally speaking the areas west and north of Prince George have experienced supply and demand conditions for lawyers that are the reverse of those obtaining in the south, with higher turnover in family law and a criminal bar that is significantly less available. In some areas (e.g. Prince Rupert, Fort St. John, and sometimes even Quesnel) it has been, and continues to be, difficult to find lawyers who will do legal aid law.
The election of a New Democratic Party government in 1991 added more fuel to the delivery model debate. A 100% tariff increase in June 1991, coupled with high volume increases of 22% in 1991/92, led to a revenue shortfall of $21 million, despite a doubling of the government allocation. The government appointed Timothy D. Agg to conduct a review of legal aid services and to make recommendations for a long-term financial and service delivery. Besides detailing the causes of the Legal Services Society’s serious financial deficit and the underlying problem of underfunding, Agg identified management and organizational problems resulting from conflicts within the Legal Services Society and between the management of the Society and the bar; and service delivery problems, including “excessive priority given to criminal legal aid, to the detriment of family and civil/administrative poverty law service” and “inconsistent availability of service in many communities throughout the province, most notably in family and other poverty law matters”. Accordingly, the Agg Report made a number of significant recommendations that would lead the province away from a model of legal aid that (with the exception of poverty law) was delivered almost entirely by private bar lawyers at that time. These recommendations included:
· “Adopt a more flexible mix of tariff and staffed services, with increased use of paralegals and increased use of paralegals and increased collaboration of, and support to, lay advocates.
· Ensure equitable allocation of resources to family, civil/administrative and criminal law services.
· Reduce criminal tariff by approximately 10%, with the savings allocated to improving the family and human rights tariffs; establishing a limited civil tariff; considering a senior tariff; reducing carrying of disbursements on family cases; tieing future tariffs to comprehensive policy on public sector lawyer compensation
· Adopt a three-year plan to: expand staff of local offices; increase the number of local offices; and improve working relationships between tariff and staffed services. Finance this plan by assigning about 25% of current tariff caseload to staff delivery. In third year, staffed services may handle up to 50% range of present tariff caseload.
· Increase local access to service throughout the province, and ensure choice of counsel where appropriate.
· Place responsibility for local/regional services under the control of community boards, with authority for local budget, staff and service planning. The society will set service delivery standards, ensure quality control and accountability, establish provincial service policy,and maintain fiscal control. Provision is made for consistency in wages, benefits supervision, seniority and career mobility.”
In 1994, a Reform package based largely on the discussion of these and other proposals was introduced that included a tariff reduction, a client contribution program, and a proposal to move to 50 percent staff lawyer system. The private bar reacted strongly against the mixed model proposal, and in July 1994 the Association of Legal Aid Lawyers withdrew their services. The result was a tri-party accord in September 1994 between the government, the Law Society of B.C. and the Legal Services Society, which limited the number of staff lawyers to about 15-20 percent of total service delivery, or 90 lawyers. What is significant to note for the purposes of this study is that, while the north undoubtedly benefited from the opening of Community Law Offices and Native Community Law Offices the full implementation of the Agg Report would have been particularly advantageous for rural and northern communities---assuming that lawyers could be found to fully staff the offices.
Federal-Provincial Finance
Meanwhile, changes in federal-provincial finance continued to provide a context, and a spur, for provincial innovation.
Federal funding for civil legal aid matters began in the late 1970s as part of the Canada Assistance Plan funding to the provinces, and the funds provided were linked to those actually spent. In 1994-95, this funding was rolled into the Canada Health and Social Transfer (CHST) and became an unconditional transfer payment to the provinces. At that time, approximately $99 million of federal money was being provided for civil legal aid services. Federal support for civil legal aid services is part of what is now called the Canada Social Transfer (CST) and is not specifically identified or allocated. This in turn helped to set the stage for reduction in the scope of the civil law component of legal aid under the B.C. Liberal Government in 2002.
In 1990-91, the federal government capped its legal aid contribution at approximately $86 million. Following policy review exercises in the 1990s, federal contributions dropped, falling to $82 million in 2000-2001. The trend was reversed in 2001-2002 when $20 million was added to the criminal legal aid budget on a temporary basis. In 2003, the federal government committed to increasing the amount available for criminal legal aid services to $126.5 million for 2003-04 and for 2004-05.
Patterns of Conflict involving the Private Bar, and Consequent Constraints Upon Policy –Making
The history of private bar protest and work stoppage is interesting because the variety of contexts which have provoked disagreement illustrate the general factors constraining policy-making. An examination of the following three disputes are illustrative:
1. the 1991 Legal Aid Strike (against low tariffs), which occurred after the Hughes Report recommendations for increased tariff rates were not fully met, and which led to the creation of the Association of Legal Aid Lawyers (ALAL);
2. The July 1994 withdrawal of services by ALAL as protest against the mixed model proposal of the NDP government following the recommendations of the Agg Report, (as described above); and
3. The recent protests and legal challenges against underfunding of legal aid—including the successful challenge of the Social Services Amendment Act (no.2), 1993 in the Christie case, in which Madame Justice Koenigsberg of the B.C. Supreme that the 7% Social Services Tax (SST) on legal services for individuals earning less than $28,000 per year was a breach of the constitutional rights of low income persons by impeding access to justice. The recent (February, 2005) Charter claim of a right to civil legal aid promises to be even more significant.
Each of these conflicts had different dynamics in the north. During the 1991 Legal Aid strike Prince George lawyers continued to take referrals, unlike their counterparts in the south. During the 1994 dispute the bar in Prince George withdrew duty counsel services (i.e. the limited free legal advice afforded to individuals in custody or to speak to sentencing if a plea is entered), which then had to be filled entirely by staff lawyers. While this was a burden on staff, it led to staff lawyers being increasingly requested by the criminal accused, even in murder cases, providing additional evidence that the quality of staff lawyers was not inferior to the private bar. The current legal challenges to the SST and the dropping of civil legal aid, if both prove to be ultimately successful, could be disproportionately significant to poorer rural, northern and native communities that no longer have Community Law Offices offering family or civil law advice---such as the ones that existed in Quesnel, Burns Lake, Dawson Creek, Fort Nelson, and the former NCLO in Prince George.
How Much did Community Law Offices and Native Community Law Offices improve Access to Justice in Northern and Rural Areas?
After 1982 all new offices were opened in smaller, northern communities, doing a lot of “poverty law”--- eligibility for and administration of social assistance, dealing with conflicts between Indian bands and band members, Canada Pension Plan appeals, disciplinary hearings at local jails, and other work supporting the welfare state infrastructure of the north and rural area, and much of it being done by para legal staff. Some of these communities in the 1980s and 1990s even lacked telephones, so the availability of an office was a certain improvement of access to justice.
While some of the independence of CLOs and NCLOs has been questioned (the NDP movement towards hands-on community boards and regionalization may have contributed to administrative costs and coordination problems, as well as financial accountability in certain cases) there can be little doubt that access to justice was significantly improved.
3. Service Cuts and Reorganization of Legal Aid in B.C. 2002/2003
Prior to the cuts to the legal aid budget announced in August 2002, there were branch offices in Prince Rupert, Prince George, Fort St. John, Williams Lake and Smithers, as well as either CLOs or NCLOs in Quesnel, Burns Lake, Dawson Creek, Fort Nelson and Prince George. Now in this same area there are just two branch offices, in Prince George and Terrace. Applications and referrals have dropped in each successive year between 2001 and 2004, as follows: 2000/2001: 5,041 applications and 3, 924 referrals; 2002/2002: 4,0444 and 3,581; and in 2002/2003: 2,219 and 1,768. Staff in the Prince George Office report that this decline in applications did not just occur because the coverage of legal aid had been cut to just criminal and family law involving violence; the decline came even for services that were still available. Furthermore, there was not just a significant drop in the towns where branch offices, NCLOs and CLOs were closed, but a noticeable decline even in Prince George. The best explanation that the Legal Services Society has for this phenomenon is that the announced changes to the LSS’s coverage policies and the accompanying political environment of retrenchment have created the false impression that even criminal legal aid services and family law matters involving violence were being cut back.
The Legal Services Society could point to two aspects of its service that improved after August 2002, and one other experiment that will improve support for family law services. One was that the over-all percentage of applications resulting in referrals had risen about 10 percent since 1999, to 79.8% in 2002/2003. The other was the enhancement of the society’s overall legal information service with the expansion of the Law Line into a province-wide toll free service in September 2002, with improved technology and increased staff, handling a volume of inquiries that rose from a monthly average of 799 in April-July 2002 to 2,000 in January-March 2003. There has also been an establishment of a family law duty counsel pilot projects in 11 communities across the province, with two of these being extended to Prince George and Terrace in 2003/2004. Courthouse closures and consolidations have not been as serious a problem as expected, largely because the planned closures in 100 Mile House and Vanderhoof were not put into effect.
Nevertheless, the impact of the 2002 cutbacks had can be said to have been disproportionately adverse for the north. Many of the places where offices closed had a high proportion of First Nations people: Burns Lake, Smithers, Hazelton, New Alyansh, Fort St. James, Fort St. John, Masset and Skidegate. These NCLOs helped native people with a large number of “poverty law” issues (e.g. helping people with status cards, band conflicts, social assistance and family law issues) that are now limited to Law Line advice/self-help services, but not actual representation, other than the introduction of the pilot projects in family law duty counsel.
Unfortunately, the reduced scope of family and poverty law coverage after August, 2002 did not free more funds for criminal legal aid or for more discretionary spending by local boards. Those financially eligible persons who faced imprisonment or deportation if convicted, or who suffered from domestic violence, did not, generally speaking, benefit from appreciably greater resources. As the Prince George Office Manager put it, “We were given less, and told what to do with it.”
4. Conclusions: Complex Mixed Models and the Future of Legal Services Delivery in the North
A cynic could be forgiven for thinking at first glance that legal services, and in particular legal aid, have ended up right back where they were at the beginning of the 1990s: so radically underfunded as to constitute a “crisis” , a crisis that is more severe for aboriginal clients and citizens in northern and rural areas; tariffs that are too low to ensure the participation of a quality private bar, especially in the north and in smaller communities; and an insufficiently extensive and well-funded staff lawyer component, which is especially important in local markets where criminal, family and poverty lawyers are in short supply. It does appear that the north, which benefited greatly from paralegal work and the creation of community law offices, has probably been disproportionately hurt by the funding cutbacks.
But on closer inspection, one can also find some evidence of dialectical progress. The mixed model of service delivery is here to stay, with a choice of local counsel typically available in both civil and criminal cases. An examination of the caseload in the seven regional branch offices shows that the staff component of legal aid services has been tailored to local market conditions: in Vancouver and Victoria, where there is a surplus of criminal lawyers, staff are concerned almost exclusively with family law, while interior branch offices are more evenly divided between criminal and family law duties. The Agg Report recommendations and subsequent NDP expansion of legal aid may not have provided a cost-efficient form of legal services delivery to the north, and therefore may not have been the most sustainable model.
Several factors could, over time restore greater equality of access to justice in the North:
1) A UNBC Law School ? While there does not appear to be a Northern law school in the works in the near future, the advent of a such a school would provide a supply of lawyers without biases of southern trained layers against rural and northern practice, as well as a steady supply of students who could be trained to provide legal aid clinics and paralegal assistance in criminal, family, immigration and poverty law matters . Even in the absence of a law school, one could imagine endowing each of the seven regional LSS offices with an articling student at a total annual cost of not much more than $300-400,000 per year. Two of these students would be in Terrace and Prince George.
2) Successful Legal Challenges Although the current political climate is not favorable to the restoration of federal shared-cost programs, there are strong philosophical arguments for making an exception for access to justice, and these arguments could be mandated by the courts if the recent Canadian Bar Association challenge claiming a basic right to civil law legal aid is upheld.
3) A New Client Base The broader category of people who qualify for family court duty counsel reaches into the unionized labour force and the middle class; this class of people and the services available to them could conceivably be expanded in the future, increasing the broader community’s stake in access to justice.
4 Continued Technological Improvements While an expanded call centre is no substitute for personal advice, and advice is no substitute for representation, we can expect improvements in the effectiveness of such services as the computer literacy of the client base improves.
5 Change of Government or policy One can easily imagine an experienced former judge like Wally Oppal recognizing the costs associated with having so much self-representation in the court system, and the value of increasing qualified representation for the poor. The NDP is committed in its 2005 election platform to increasing funding for legal aid, noting that cuts in funding of 40% hurt women and the poor in respect of human rights and poverty law services; the NDP is also committed to restoring the budget for native court workers.
The Legal System and Access to Justice in B.C.’s Provincial North
"The civil element (of citizenship) is composed of the rights necessary for individual freedom --- liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice. The last is of a different order from the others, because it is the right to defend and assert all one’s rights on terms of equality with others and by due process of law." –T.H. Marshall
Introduction
The past two decades have seen an expansion of the legal rights and legal consciousness of Canadians that goes well beyond the acquisition of specific new substantive and procedural guarantees contained in the Charter of Rights and Freedoms. Law’s ‘citizen-constitutive’ role has made debate surrounding competing models of legal aid and associated policies and institutions affecting access to justice all the more important. Links between the content of citizenship and access to justice have also made the application of neoliberal ideas to justice reform both extremely difficult and politically charged.
This paper looks at the delivery of legal services in northern and rural British Columbia in order to draw greater attention to a comparatively neglected aspect of these debates. Legal historians have described how resistance to the imposition of British law and legal ideology lasted longer in rural and northern areas than in southern population centres, and how the very notion that legal services were entitlements of citizenship came decades later to the North. To what extent has the postwar expansion of legal aid and court services and their subsequent curtailment and reform (as part of a worldwide retreat from universalism that is stressing the more effective management of limited resources and de-emphasizing the achievability of truly equal access to justice) impacted northern communities? What differences exist between legal service utilization patterns between northern/rural and southern/urban communities? What specifically regional dimensions are there to the politics and policy choices concerning access to justice? Finally, as British Columbia stands at a crossroads in the development of legal service delivery, we need to ask: which model is best suited to northern and rural B.C. communities?
1. Funding of Legal Aid and Delivery Models Prior to 1981
Legal aid prior to 1979 was run by the Legal Aid Society, administered in branch offices in cities throughout B.C. under the direction of the Ministry of the Attorney-General, who were billed by private members of the criminal bar. Some services (legal education and poverty law) were also funded by the Legal Services Commission of B.C. In 1978, the Legal Aid Society and the Legal Services Commission were amalgamated into the Legal Services Society.
In 1972, the federal government, through the Department of Justice Canada, had negotiated legal aid cost-sharing agreements with the provinces. The federal government committed to contributing approximately 50% of the cost of providing criminal legal aid services in each province. The program was meant to provide legal assistance to accused people who had little or low incomes and were charged with an offence for which incarceration was likely upon conviction or were facing extradition or were appealing a judgement relating to these types of situations. Aside from setting these minimal coverage goals, including coverage for young offenders facing closed or open custody, the cost-sharing agreements did not dictate eligibility criteria or how a provincial legal aid plan should provide services.
Provinces provide criminal legal aid services through different service delivery models — government-funded legal aid clinics and private practice lawyers paid a set hourly rate or a tariff per type of case. In British Columbia, certified members of the criminal bar billed the province, but this ‘judicare’model became more complicated after 1978, with tensions occasionally emerging between the judicare component (inherited from the criminal work of the Legal Aid society) and the ‘staff’ component inherited from the Legal Services Commission. This tension was apparent in many smaller centres, as the differing market conditions in northern and rural British Columbia sometimes led to a greater emphasis on the staff model, particularly with respect to civil matters (i.e. family, immigration, and poverty law, and legal education). In later years this tension would become more pronounced, as the New Democratic Party government moved toward regionalization of law offices and the creation of community boards for legal services as well as other social services.
2. The 1980s and 1990s: The Debate over Delivery Models
A watershed in the history of the delivery models debate was the 1981 Burnaby study. This was the first in a series of Canadian studies which purported to show that staff lawyers could deliver legal aid at less cost and with a similar quality of service compared with judicare in criminal law cases. Later studies, in particular the 1984 Department of Justice Evaluation of Legal Aid in B.C. and the 1987 Canadian Bar Association Discussion Paper, provided mounting empirical evidence and argument in favour of a larger staff component. Nevertheless, these conclusions were vigorously disputed by representatives of the private bar, who argued that data presented in these and other reports were skewed by their failure to take into account the less complicated nature of services provided by staff lawyers and the higher quality of service, and choice, provided by the private bar.
This debate has been well described and documented Albert Currie’s article on Legal Aid Delivery Models in Canada. What is not mentioned in Currie’s article, and not given extensive treatment in either the CBA Report or the Burnaby study, is the regional dimension of the data, which suggests that the arguments in favour of the staff model are stronger in rural and northern parts of the province, where the private bar tends to be less plentiful in relation to either demand or need. Deborah O’Leary, the Manager of the Prince George Branch Office since 1984, has stated that generally speaking the areas west and north of Prince George have experienced supply and demand conditions for lawyers that are the reverse of those obtaining in the south, with higher turnover in family law and a criminal bar that is significantly less available. In some areas (e.g. Prince Rupert, Fort St. John, and sometimes even Quesnel) it has been, and continues to be, difficult to find lawyers who will do legal aid law.
The election of a New Democratic Party government in 1991 added more fuel to the delivery model debate. A 100% tariff increase in June 1991, coupled with high volume increases of 22% in 1991/92, led to a revenue shortfall of $21 million, despite a doubling of the government allocation. The government appointed Timothy D. Agg to conduct a review of legal aid services and to make recommendations for a long-term financial and service delivery. Besides detailing the causes of the Legal Services Society’s serious financial deficit and the underlying problem of underfunding, Agg identified management and organizational problems resulting from conflicts within the Legal Services Society and between the management of the Society and the bar; and service delivery problems, including “excessive priority given to criminal legal aid, to the detriment of family and civil/administrative poverty law service” and “inconsistent availability of service in many communities throughout the province, most notably in family and other poverty law matters”. Accordingly, the Agg Report made a number of significant recommendations that would lead the province away from a model of legal aid that (with the exception of poverty law) was delivered almost entirely by private bar lawyers at that time. These recommendations included:
· “Adopt a more flexible mix of tariff and staffed services, with increased use of paralegals and increased use of paralegals and increased collaboration of, and support to, lay advocates.
· Ensure equitable allocation of resources to family, civil/administrative and criminal law services.
· Reduce criminal tariff by approximately 10%, with the savings allocated to improving the family and human rights tariffs; establishing a limited civil tariff; considering a senior tariff; reducing carrying of disbursements on family cases; tieing future tariffs to comprehensive policy on public sector lawyer compensation
· Adopt a three-year plan to: expand staff of local offices; increase the number of local offices; and improve working relationships between tariff and staffed services. Finance this plan by assigning about 25% of current tariff caseload to staff delivery. In third year, staffed services may handle up to 50% range of present tariff caseload.
· Increase local access to service throughout the province, and ensure choice of counsel where appropriate.
· Place responsibility for local/regional services under the control of community boards, with authority for local budget, staff and service planning. The society will set service delivery standards, ensure quality control and accountability, establish provincial service policy,and maintain fiscal control. Provision is made for consistency in wages, benefits supervision, seniority and career mobility.”
In 1994, a Reform package based largely on the discussion of these and other proposals was introduced that included a tariff reduction, a client contribution program, and a proposal to move to 50 percent staff lawyer system. The private bar reacted strongly against the mixed model proposal, and in July 1994 the Association of Legal Aid Lawyers withdrew their services. The result was a tri-party accord in September 1994 between the government, the Law Society of B.C. and the Legal Services Society, which limited the number of staff lawyers to about 15-20 percent of total service delivery, or 90 lawyers. What is significant to note for the purposes of this study is that, while the north undoubtedly benefited from the opening of Community Law Offices and Native Community Law Offices the full implementation of the Agg Report would have been particularly advantageous for rural and northern communities---assuming that lawyers could be found to fully staff the offices.
Federal-Provincial Finance
Meanwhile, changes in federal-provincial finance continued to provide a context, and a spur, for provincial innovation.
Federal funding for civil legal aid matters began in the late 1970s as part of the Canada Assistance Plan funding to the provinces, and the funds provided were linked to those actually spent. In 1994-95, this funding was rolled into the Canada Health and Social Transfer (CHST) and became an unconditional transfer payment to the provinces. At that time, approximately $99 million of federal money was being provided for civil legal aid services. Federal support for civil legal aid services is part of what is now called the Canada Social Transfer (CST) and is not specifically identified or allocated. This in turn helped to set the stage for reduction in the scope of the civil law component of legal aid under the B.C. Liberal Government in 2002.
In 1990-91, the federal government capped its legal aid contribution at approximately $86 million. Following policy review exercises in the 1990s, federal contributions dropped, falling to $82 million in 2000-2001. The trend was reversed in 2001-2002 when $20 million was added to the criminal legal aid budget on a temporary basis. In 2003, the federal government committed to increasing the amount available for criminal legal aid services to $126.5 million for 2003-04 and for 2004-05.
Patterns of Conflict involving the Private Bar, and Consequent Constraints Upon Policy –Making
The history of private bar protest and work stoppage is interesting because the variety of contexts which have provoked disagreement illustrate the general factors constraining policy-making. An examination of the following three disputes are illustrative:
1. the 1991 Legal Aid Strike (against low tariffs), which occurred after the Hughes Report recommendations for increased tariff rates were not fully met, and which led to the creation of the Association of Legal Aid Lawyers (ALAL);
2. The July 1994 withdrawal of services by ALAL as protest against the mixed model proposal of the NDP government following the recommendations of the Agg Report, (as described above); and
3. The recent protests and legal challenges against underfunding of legal aid—including the successful challenge of the Social Services Amendment Act (no.2), 1993 in the Christie case, in which Madame Justice Koenigsberg of the B.C. Supreme that the 7% Social Services Tax (SST) on legal services for individuals earning less than $28,000 per year was a breach of the constitutional rights of low income persons by impeding access to justice. The recent (February, 2005) Charter claim of a right to civil legal aid promises to be even more significant.
Each of these conflicts had different dynamics in the north. During the 1991 Legal Aid strike Prince George lawyers continued to take referrals, unlike their counterparts in the south. During the 1994 dispute the bar in Prince George withdrew duty counsel services (i.e. the limited free legal advice afforded to individuals in custody or to speak to sentencing if a plea is entered), which then had to be filled entirely by staff lawyers. While this was a burden on staff, it led to staff lawyers being increasingly requested by the criminal accused, even in murder cases, providing additional evidence that the quality of staff lawyers was not inferior to the private bar. The current legal challenges to the SST and the dropping of civil legal aid, if both prove to be ultimately successful, could be disproportionately significant to poorer rural, northern and native communities that no longer have Community Law Offices offering family or civil law advice---such as the ones that existed in Quesnel, Burns Lake, Dawson Creek, Fort Nelson, and the former NCLO in Prince George.
How Much did Community Law Offices and Native Community Law Offices improve Access to Justice in Northern and Rural Areas?
After 1982 all new offices were opened in smaller, northern communities, doing a lot of “poverty law”--- eligibility for and administration of social assistance, dealing with conflicts between Indian bands and band members, Canada Pension Plan appeals, disciplinary hearings at local jails, and other work supporting the welfare state infrastructure of the north and rural area, and much of it being done by para legal staff. Some of these communities in the 1980s and 1990s even lacked telephones, so the availability of an office was a certain improvement of access to justice.
While some of the independence of CLOs and NCLOs has been questioned (the NDP movement towards hands-on community boards and regionalization may have contributed to administrative costs and coordination problems, as well as financial accountability in certain cases) there can be little doubt that access to justice was significantly improved.
3. Service Cuts and Reorganization of Legal Aid in B.C. 2002/2003
Prior to the cuts to the legal aid budget announced in August 2002, there were branch offices in Prince Rupert, Prince George, Fort St. John, Williams Lake and Smithers, as well as either CLOs or NCLOs in Quesnel, Burns Lake, Dawson Creek, Fort Nelson and Prince George. Now in this same area there are just two branch offices, in Prince George and Terrace. Applications and referrals have dropped in each successive year between 2001 and 2004, as follows: 2000/2001: 5,041 applications and 3, 924 referrals; 2002/2002: 4,0444 and 3,581; and in 2002/2003: 2,219 and 1,768. Staff in the Prince George Office report that this decline in applications did not just occur because the coverage of legal aid had been cut to just criminal and family law involving violence; the decline came even for services that were still available. Furthermore, there was not just a significant drop in the towns where branch offices, NCLOs and CLOs were closed, but a noticeable decline even in Prince George. The best explanation that the Legal Services Society has for this phenomenon is that the announced changes to the LSS’s coverage policies and the accompanying political environment of retrenchment have created the false impression that even criminal legal aid services and family law matters involving violence were being cut back.
The Legal Services Society could point to two aspects of its service that improved after August 2002, and one other experiment that will improve support for family law services. One was that the over-all percentage of applications resulting in referrals had risen about 10 percent since 1999, to 79.8% in 2002/2003. The other was the enhancement of the society’s overall legal information service with the expansion of the Law Line into a province-wide toll free service in September 2002, with improved technology and increased staff, handling a volume of inquiries that rose from a monthly average of 799 in April-July 2002 to 2,000 in January-March 2003. There has also been an establishment of a family law duty counsel pilot projects in 11 communities across the province, with two of these being extended to Prince George and Terrace in 2003/2004. Courthouse closures and consolidations have not been as serious a problem as expected, largely because the planned closures in 100 Mile House and Vanderhoof were not put into effect.
Nevertheless, the impact of the 2002 cutbacks had can be said to have been disproportionately adverse for the north. Many of the places where offices closed had a high proportion of First Nations people: Burns Lake, Smithers, Hazelton, New Alyansh, Fort St. James, Fort St. John, Masset and Skidegate. These NCLOs helped native people with a large number of “poverty law” issues (e.g. helping people with status cards, band conflicts, social assistance and family law issues) that are now limited to Law Line advice/self-help services, but not actual representation, other than the introduction of the pilot projects in family law duty counsel.
Unfortunately, the reduced scope of family and poverty law coverage after August, 2002 did not free more funds for criminal legal aid or for more discretionary spending by local boards. Those financially eligible persons who faced imprisonment or deportation if convicted, or who suffered from domestic violence, did not, generally speaking, benefit from appreciably greater resources. As the Prince George Office Manager put it, “We were given less, and told what to do with it.”
4. Conclusions: Complex Mixed Models and the Future of Legal Services Delivery in the North
A cynic could be forgiven for thinking at first glance that legal services, and in particular legal aid, have ended up right back where they were at the beginning of the 1990s: so radically underfunded as to constitute a “crisis” , a crisis that is more severe for aboriginal clients and citizens in northern and rural areas; tariffs that are too low to ensure the participation of a quality private bar, especially in the north and in smaller communities; and an insufficiently extensive and well-funded staff lawyer component, which is especially important in local markets where criminal, family and poverty lawyers are in short supply. It does appear that the north, which benefited greatly from paralegal work and the creation of community law offices, has probably been disproportionately hurt by the funding cutbacks.
But on closer inspection, one can also find some evidence of dialectical progress. The mixed model of service delivery is here to stay, with a choice of local counsel typically available in both civil and criminal cases. An examination of the caseload in the seven regional branch offices shows that the staff component of legal aid services has been tailored to local market conditions: in Vancouver and Victoria, where there is a surplus of criminal lawyers, staff are concerned almost exclusively with family law, while interior branch offices are more evenly divided between criminal and family law duties. The Agg Report recommendations and subsequent NDP expansion of legal aid may not have provided a cost-efficient form of legal services delivery to the north, and therefore may not have been the most sustainable model.
Several factors could, over time restore greater equality of access to justice in the North:
1) A UNBC Law School ? While there does not appear to be a Northern law school in the works in the near future, the advent of a such a school would provide a supply of lawyers without biases of southern trained layers against rural and northern practice, as well as a steady supply of students who could be trained to provide legal aid clinics and paralegal assistance in criminal, family, immigration and poverty law matters . Even in the absence of a law school, one could imagine endowing each of the seven regional LSS offices with an articling student at a total annual cost of not much more than $300-400,000 per year. Two of these students would be in Terrace and Prince George.
2) Successful Legal Challenges Although the current political climate is not favorable to the restoration of federal shared-cost programs, there are strong philosophical arguments for making an exception for access to justice, and these arguments could be mandated by the courts if the recent Canadian Bar Association challenge claiming a basic right to civil law legal aid is upheld.
3) A New Client Base The broader category of people who qualify for family court duty counsel reaches into the unionized labour force and the middle class; this class of people and the services available to them could conceivably be expanded in the future, increasing the broader community’s stake in access to justice.
4 Continued Technological Improvements While an expanded call centre is no substitute for personal advice, and advice is no substitute for representation, we can expect improvements in the effectiveness of such services as the computer literacy of the client base improves.
5 Change of Government or policy One can easily imagine an experienced former judge like Wally Oppal recognizing the costs associated with having so much self-representation in the court system, and the value of increasing qualified representation for the poor. The NDP is committed in its 2005 election platform to increasing funding for legal aid, noting that cuts in funding of 40% hurt women and the poor in respect of human rights and poverty law services; the NDP is also committed to restoring the budget for native court workers.
Friday, November 25, 2005
What U2's Lead Singer Doesn't Understand About Canadian Politics
Lately, the normally mellifluous Irish superstar Bono has been sounding less like the most popular singer on the planet and more like Woody Allen. The source of his dissonance and disillusionment has been the disappointing performance of Prime Minister Paul Martin in the area of foreign aid.
"I'm crushed.....I'm mystified, actually, by the man," the U2 leader singer told a news conference Friday. "I like him very much, personally. "I just think that it's a huge opportunity that he's missing out on. This is important to the Canadian people. I think the prime minister will find out if he walks away from the opportunity to (boost foreign aid) he will hear about it in the election. I am absolutely sure of that."
Like most international humanitarian celebrities, Bono knows about the most storied highlights of Canada's progressive past: Lester Pearson's Nobel Prize for Peacekeeping, all that social legislation, John Lennon's ringing endorsement of Pierre Trudeau, Brian Mulroney's and Stephen Lewis's spirited fight against against apartheid, Canada's penchant for multilateralism, and the simple fact that it was Canada's Prime Minister Pearson who first proposed the goal of dedicating 0.7% of GDP to foreign aid, over 40 years ago.
Having met Paul Martin, Bono had no doubt of his direct lineage from Pearson and Trudeau (although a word with Jean Chretien might have sewn some doubts.) Bono also knows that Canada has been given to brag about its affluence, its rate of job creation, its perennial top rankings on the Human Development Index, and the fact that it has been running up fiscal surpluses more consistently than any other G7 country.
Hence Bono's mystification. Why does this Good Man drag his feet?
Bono's blind spot is his understandable ignorance of what lies inside that big black box known as Canadian domestic politics. First, there is the nature of the Liberal Party and its history as the natural party of government--it's geographical and class basis, and its ideological flexibility.
Bono is precisely the kind of man that McKenzie King or Louis St. Laurent would have patronized as a "Liberal in a hurry". I get the feeling that Paul has that same attitude, although he is too smart to actually say it.
Next, there is the right mix of historial conditions that must exist before the Liberal Party's progressive promises can bloom. The Pearson Governments of 1963-1968 and the Trudeau Government of 1972-1974 were both minority governments, a fact that was crucial to the evolution of the Canadian Welfare state. McGill historian Antonia Maioni has documented the crucial role that the likes of Tommy Douglas, Stanley Knowles, and David Lewis played in pressuring Ottawa to accept medicare and other social legislation. Indeed, one Liberal MP in the Pearson Government actually castigated Pearson for being "gutless" for dragging his feet on medicare after Tommy Douglas's Saskatchewan government and a federal Royal Commission chaired by Justice Emmett Hall had demonstrated its value and viability. So, Bono is right to identify Martin with Pearson, though perhaps not for the reasons he imagined.
Finally, there is the mystifying conundrum of Canadian federalism. It is much easier for federal governments, who have all the revenue raising abilities and few of the spending responsibilties that provinces have, to balance their books. At the provincial level, where social policy actually is formulated and implemented, money is scarcer than Bono may have been led to believe. That being the case, although the Liberals are breaking records for election eve spending announcements, most of that money is being targetted where it can be expected to get the biggest electoral bang: daycare, tax breaks, pine beetle, softwood lumber, transportation, municipal infrastructure and (more nobly) First Nations poverty and economic development. (Actually, I have a preference for foreign aid, if only because it is one of the few areas that are genuinely a matter of federal jurisdiction.)
Hopefully, Mr. Martin will be emboldened by a rise in public support for foreign aid to increase funding for AIDS and development in Africa. But don't expect him to even restore Canada's foreign aid spending to historically high levels on his own volition. As I am sure Stephen Lewis could tell Bono, that is more likely to happen when the NDP has a clear balance of power in Parliament.
"I'm crushed.....I'm mystified, actually, by the man," the U2 leader singer told a news conference Friday. "I like him very much, personally. "I just think that it's a huge opportunity that he's missing out on. This is important to the Canadian people. I think the prime minister will find out if he walks away from the opportunity to (boost foreign aid) he will hear about it in the election. I am absolutely sure of that."
Like most international humanitarian celebrities, Bono knows about the most storied highlights of Canada's progressive past: Lester Pearson's Nobel Prize for Peacekeeping, all that social legislation, John Lennon's ringing endorsement of Pierre Trudeau, Brian Mulroney's and Stephen Lewis's spirited fight against against apartheid, Canada's penchant for multilateralism, and the simple fact that it was Canada's Prime Minister Pearson who first proposed the goal of dedicating 0.7% of GDP to foreign aid, over 40 years ago.
Having met Paul Martin, Bono had no doubt of his direct lineage from Pearson and Trudeau (although a word with Jean Chretien might have sewn some doubts.) Bono also knows that Canada has been given to brag about its affluence, its rate of job creation, its perennial top rankings on the Human Development Index, and the fact that it has been running up fiscal surpluses more consistently than any other G7 country.
Hence Bono's mystification. Why does this Good Man drag his feet?
Bono's blind spot is his understandable ignorance of what lies inside that big black box known as Canadian domestic politics. First, there is the nature of the Liberal Party and its history as the natural party of government--it's geographical and class basis, and its ideological flexibility.
Bono is precisely the kind of man that McKenzie King or Louis St. Laurent would have patronized as a "Liberal in a hurry". I get the feeling that Paul has that same attitude, although he is too smart to actually say it.
Next, there is the right mix of historial conditions that must exist before the Liberal Party's progressive promises can bloom. The Pearson Governments of 1963-1968 and the Trudeau Government of 1972-1974 were both minority governments, a fact that was crucial to the evolution of the Canadian Welfare state. McGill historian Antonia Maioni has documented the crucial role that the likes of Tommy Douglas, Stanley Knowles, and David Lewis played in pressuring Ottawa to accept medicare and other social legislation. Indeed, one Liberal MP in the Pearson Government actually castigated Pearson for being "gutless" for dragging his feet on medicare after Tommy Douglas's Saskatchewan government and a federal Royal Commission chaired by Justice Emmett Hall had demonstrated its value and viability. So, Bono is right to identify Martin with Pearson, though perhaps not for the reasons he imagined.
Finally, there is the mystifying conundrum of Canadian federalism. It is much easier for federal governments, who have all the revenue raising abilities and few of the spending responsibilties that provinces have, to balance their books. At the provincial level, where social policy actually is formulated and implemented, money is scarcer than Bono may have been led to believe. That being the case, although the Liberals are breaking records for election eve spending announcements, most of that money is being targetted where it can be expected to get the biggest electoral bang: daycare, tax breaks, pine beetle, softwood lumber, transportation, municipal infrastructure and (more nobly) First Nations poverty and economic development. (Actually, I have a preference for foreign aid, if only because it is one of the few areas that are genuinely a matter of federal jurisdiction.)
Hopefully, Mr. Martin will be emboldened by a rise in public support for foreign aid to increase funding for AIDS and development in Africa. But don't expect him to even restore Canada's foreign aid spending to historically high levels on his own volition. As I am sure Stephen Lewis could tell Bono, that is more likely to happen when the NDP has a clear balance of power in Parliament.
Sunday, September 18, 2005
Does Another Referendum on BC-STV in 2008 Indicate Belief in "People Infallibility"? Nope, Just Sound Politics
Give Premier Gordon Campbell high marks for sound political judgement on his decision
to have another referendum on BC-STV to coincide with the 2008 municipal elections.
Provided that both sides of this debate are afforded adequate resources to put their cases forward, it should result in a more informed vote. By not tampering with the decision of the Assembly, he has avoided accusations of conflict-of-interest. Backbench and Opposition MLAs will be relieved of the unpleasant task of publicly voting against a proposal that most of their constituents have already endorsed (or else voting for something that could put them out of a job). And he has kept alive his own potential place in history as a pioneer of populist democratic reform.
Note that these merits are primarily political and procedural, not substantive. For those of us who voted "yes" in May 2005 in the hope of furthering the general cause of electoral reform rather than BC-STV as such, we are faced with the sobering reality that BC-STV is the only game in town. I have already argued in two previous columns that BC-STV is more proportional than we really need, that it is more radical than is really necessary, etc. And if, after a section of the the electorate balks at BC-STV's overly large ridings and long ballots, and the proposal once again gets 50-58% of the vote (just falling short of the 60% threshold required for ratification), remember "I told you so".
Philosophically, I am certain that a more modest electoral reform can deliver more consensual and representative government without perpetual factionalism, log-rolling, and shifting coalition bargaining of the sort we have witnessed recently at the federal level. Dr. Spector has a point! I am also convinced that a certain degree of privileging of geographically concentrated
preferences is also defensible, although not to the degree that our present system does. A higher threshold than pure proportionality forces supporters of fringe parties and marginal preferences to bring their arguments to the common forum and to see how they fare in debate about a range of issues.
If for example, a party such as the Green Party or the Marijuana Party cannot attain a 20% threshold of the vote in any of the 5 or 6 electoral districts envisaged by "MMP lite", that says something about its ability to appeal to the general interest. And should such a party, elected in a more proportional system, hold disproportional influence in a minority parliament? If such a party is really capable of appealing to both the right and the left, as Ms. Carr says, and is not tarnished by having been in power, then it ought to be able to elect some MLAs in two-and three-member STV districts envisaged by "STV-lite".
Some thoughtful, progressive advocates of "PR" electoral reform, such as Dr. Alex Michalos of the University of Northern British Columbia, will be voting"no" in the next referendum on BC-STV. As for yours truly, it will be a difficult choice, and one that I will probably take two years to make.
to have another referendum on BC-STV to coincide with the 2008 municipal elections.
Provided that both sides of this debate are afforded adequate resources to put their cases forward, it should result in a more informed vote. By not tampering with the decision of the Assembly, he has avoided accusations of conflict-of-interest. Backbench and Opposition MLAs will be relieved of the unpleasant task of publicly voting against a proposal that most of their constituents have already endorsed (or else voting for something that could put them out of a job). And he has kept alive his own potential place in history as a pioneer of populist democratic reform.
Note that these merits are primarily political and procedural, not substantive. For those of us who voted "yes" in May 2005 in the hope of furthering the general cause of electoral reform rather than BC-STV as such, we are faced with the sobering reality that BC-STV is the only game in town. I have already argued in two previous columns that BC-STV is more proportional than we really need, that it is more radical than is really necessary, etc. And if, after a section of the the electorate balks at BC-STV's overly large ridings and long ballots, and the proposal once again gets 50-58% of the vote (just falling short of the 60% threshold required for ratification), remember "I told you so".
Philosophically, I am certain that a more modest electoral reform can deliver more consensual and representative government without perpetual factionalism, log-rolling, and shifting coalition bargaining of the sort we have witnessed recently at the federal level. Dr. Spector has a point! I am also convinced that a certain degree of privileging of geographically concentrated
preferences is also defensible, although not to the degree that our present system does. A higher threshold than pure proportionality forces supporters of fringe parties and marginal preferences to bring their arguments to the common forum and to see how they fare in debate about a range of issues.
If for example, a party such as the Green Party or the Marijuana Party cannot attain a 20% threshold of the vote in any of the 5 or 6 electoral districts envisaged by "MMP lite", that says something about its ability to appeal to the general interest. And should such a party, elected in a more proportional system, hold disproportional influence in a minority parliament? If such a party is really capable of appealing to both the right and the left, as Ms. Carr says, and is not tarnished by having been in power, then it ought to be able to elect some MLAs in two-and three-member STV districts envisaged by "STV-lite".
Some thoughtful, progressive advocates of "PR" electoral reform, such as Dr. Alex Michalos of the University of Northern British Columbia, will be voting"no" in the next referendum on BC-STV. As for yours truly, it will be a difficult choice, and one that I will probably take two years to make.
Wednesday, August 17, 2005
More Than We Bargained For: Canadian Trade Policy After the Chaouili Decision
{ The following blog was written shortly after the Supreme Court's decision in Chaouli v. Quebec (Attorney-general) on June 9, 2005. A substantially revised version of the article appears in a peer-reviewed journal at the following citation: "Interactions: Trade Policy and healthcare Reform After Chaoulli v. Quebec," Healthcare Policy, Vol.1, No.2 (January 2006). Students or journalists who are writing on the intersection of trade and health policy should refer to the newer version!---M.C.}
“The GATS recognizes the rights of WTO Members to provide services in the public sector and Canada and other Members of the WTO are not prepared to compromise this right. Thus, our commitments with respect to “health insurance services” are clearly restricted to supplemental health insurance services provided by private insurers.”
--Government of Canada response to concerns voiced about Canada’s GATS commitments on private health insurance, May 2001.
Although it is seldom remarked upon, the ban on private health insurance has been a fundamental assumption of Canada’s trade policy ever since the North American Free Trade Agreement (NAFTA) and the WTO’s General Agreement on Trade in Services (GATS) took effect over a decade ago. The domestic legitimacy of both treaties in Canada depends in large part on the system of publicly funded health care under the Canada Health Act remaining secure against any challenge that it violates NAFTA or GATS obligations. This separation between health policy and trade policy depends in turn on the maintenance of single-payer public insurance. Of course, whether the reasoning behind the Supreme Court decision in Chaoulli v. Attorney-General (Quebec) will ultimately lead to a removal of the ban on private health insurance across Canada, and, even if it does, whether a de facto government monopoly can legally be preserved through other means, is yet to be determined. We may also wonder just how much it matters that medicare be insulated from NAFTA and the GATS. Is this just a “legitimacy” problem, based on popular fears and misconceptions about trade agreements, or are trade treaty obligations really at odds with the most valuable features of Canadian health care?
Maude Barlow of the Council of Canadians has correctly pointed out that the NAFTA exemption for health care only clearly applies to a publicly funded system delivered on a non-commercial basis. Once a certain threshold of privatization is passed, U.S. private hospital chains would have the right to the same treatment as Canadian for-profit companies. Her next inference—that “in no time, the public system would be bankrupt and we would have an Americanized corporate health-care system”—is characteristically provocative, and more controversial. (It assumes that Canada’s NAFTA obligations sharply distinguish Canada’s situation from that of some European countries relied upon in the Supreme Court’s ruling.) For its part, the WTO admits that provision of services on a commercial or competitive basis would cause them to be covered by the basic “most-favoured nation” (MFN) obligation to extend any advantages conferred upon one foreign service provider to all other WTO Members. It insists, however, that “the implications of MFN are minimal: monopoly suppliers can be maintained, established or reestablished, for example; limitations of any other kind can be imposed on foreign supply.”(“GATS: Fact and Fiction”, 2001). GATS critics suggest that the MFN obligation might nonetheless make it more difficult to reverse privatization and commercialization, since it can have the effect of consolidating commercialization wherever it occurs.
More seriously, it appears that Canadians failed to anticipate the possible repercussions of making full commitments at the WTO in the area of private health insurance in 1995. Even those GATS critics who expressed alarm at the decision were mostly concerned about the need for a stronger Maginot line—i.e. to guard against the possible interpretation and application of GATS rules in WTO dispute settlement panels. (The Charter of Rights has not generally been viewed as the more serious threat in globalization debates.) Of course, when the complex and changing nature of health care services funding and delivery is combined with the broad and largely untested scope of GATS and NAFTA rules, there are bound to be many mysteries and some surprises. But we can safely conclude this much: that the insulation of health care from trade treaties matters, because it affects policy options for health care reform. More specifically, it affects the choice, and cost, of health policy instruments, and the flexibility to reverse or modify market-based innovations in the future.
There are two main instruments for protecting public health care from trade actions. The first is a “carve out” from basic treaty obligations, such as the NAFTA reservation clauses or GATS exemption clause for public services. The scope, effectiveness, and endurance of such carve-outs will be determined by the legal development and application of certain objective criteria: the extent of government regulation and control over delivery of the service; the degree to which the service is provided by not-for-profit organizations; the presence of competitive and commercial markets; and, most importantly, the degree of public versus private funding. The second instrument is the limitation of private health insurance to “supplemental” or non-core medical services, lest obligations in respect of liberalized financial services interfere with the delivery of core health care as a public good (i.e. as something that markets fail to provide efficiently, let alone equitably).
The view that the scope of NAFTA reservations in relation to Health Services is sufficient to protect publicly funded health care in Canada from any NAFTA challenge is a reasonable interpretation from a static perspective, based upon the accepted definitions of public and private health services at the time of NAFTA’s inception. Canada’s Annex I Reservation states that all provincial government measures that were in force as of January 1, 1994 are outside the NAFTA rules relating to national treatment, MFN, and some other disciplines relating to local presence requirements for cross-border services and nationality requirements for senior managers. Any future measures or amendments, however, that exclude or otherwise discriminate against US and Mexican providers of services are contrary to the NAFTA, unless they are saved by the Annex II Social Service Reservation.
Under Annex II, each Party reserved the right to adopt or maintain any measure relating to health services that may be characterized as being with respect to a “social service established or maintained for a public purpose”. The precise scope of this Social Service Reservation is the subject of much debate and speculation. The US Trade Representative in 1995 suggested that the reservation is intended only to cover services “which are similar to those provided by government, such as childcare or drug treatment programs,” so that if those services are supplied by a private firm on a profit or non-profit basis, Chapter Eleven (Investment) and Twelve (Services) would apply. The Canadian government has claimed that, to the contrary, the broad ordinary meaning of “service established or maintained for a public purpose” reflects an intention to permit each Party to NAFTA to decide for itself whether it views a particular service as falling within the reservation. Both of these views appear to be extreme and unlikely to be followed. Legal academics generally agree that an objective test based on general criteria for what constitutes a public service is necessary. Where full state funding is combined with extensive government control over delivery, then there is a very strong case for the application of the reservation. T. Epps and C. Flood argued in the McGill Law Journal in 2002 that full state funding alone is sufficient, even where governments permit competition and for-profit delivery in the interests of efficiency.
There appears to be widespread agreement, therefore, that the degree of public funding is the most important single criterion for what falls within the Social Services Reservation. Accordingly, the simple fact that insured services designated by a provincial government as “medically necessary” are paid for by a public authority is a good indication that such services are also outside the NAFTA. This is probably as true of provinces such as Nova Scotia, Newfoundland, New Brunswick and Saskatchewan, which have no outright prohibition against private insurance of services insured under the Canada Health Act, as it is of those provinces that do. Due to long waiting lists in the public sector, however, a niche for private sector financing has nonetheless begun to appear. If this niche is filled in the marketplace, the condition of government-funded monopoly will disappear. It is already apparent that the Social Services Reservation does not protect measures related to for-profit privately funded services of physicians and other health care professionals; or privately-funded home care or nursing home services. Allowing private insurance for services designated as “medically necessary” would further reduce the scope of this NAFTA reservation.
Canada’s GATS obligations present a similar picture of current insulation coupled with increasing future vulnerability to coverage. The GATS contains an exemption from the most basic MFN and transparency obligations for services “supplied in the exercise of governmental authority”, which are defined in Article I:3 as any service, which is “supplied neither on a commercial basis, nor in competition with one or more service suppliers”. As with the debate over the scope of NAFTA reservations, there has never been a consensus on what exactly these words mean, beyond general agreement that a pure government monopoly that does not charge for its service would meet this definition. While the legal meaning of “competition” in services is unclear, it probably involves consumers being able to choose between “like” services offered by different suppliers. Such a choice between public and private suppliers has not generally been allowed under most provincial health plans, or under the terms of “Public Administration” and “Comprehensiveness” as defined in the Canada Health Act. Similarly, any finding of supply to be “on a commercial basis” would need to consider a range of criteria: whether a service is supplied on a for-profit basis; whether user fees are charged; whether any revenues earned in excess of cost are devoted to fulfillment of a not-for–profit purpose; and the degree of government involvement and control over conditions of service delivery. Most of these criteria, when applied to core medical services as they are currently supplied in Canada, would not indicate their classification as being supplied “on a commercial basis.”
The most onerous WTO/GATS obligations, however, are those which are incurred through specific commitments to accept national treatment and market access obligations in specific sectors. A look at Canada’s Schedule of Specific Commitments show that Canada has avoided undertaking obligations in respect of “health and public education”, consistent with its pronouncements, with one notable exception: private insurance, such as Blue Cross, is categorized as a ‘financial service” for GATS/WTO purposes, just as it is for NAFTA purposes, and Canada in 1995 made a commitment in “life, accident and health insurance services”, subject only to the limitation on market access that these services “must be supplied through a commercial presence” (i.e. through direct investment and establishment within Canada).
Some critics and health policy advocates have worried that public health insurance is possibly already covered under Canada’s GATS commitments on financial services. In response, the Government of Canada has repeatedly assured Canadians that “health care is off the table”, stressing the flexibility of the GATS scheduling methodology and Canada’s preservation of its flexibility to adopt or maintain measures with respect to health services. The government has also maintained that Canada’s commitments with respect to “health insurance services” are clearly restricted to supplemental health insurance services provided by private insurers, since the GATS excludes governmental services that are not ”in competition with one or more service suppliers.” The assumption that medically necessary services are “public” and that supplemental insurance is “private”—that the two areas of insurance are mutually exclusive--- underlies the Government’s decision to make commitments in life insurance and has been repeatedly expressed in its communications with the public.
Clearly, the current insulation of Canada’s health care sector from trade treaty obligations (whether GATS or NAFTA) is bound to come under stress as Canada’s public health system changes, regardless of whether the system expands or contracts. If levels of public funding and public delivery are reduced, health care may be subjected to the higher levels of obligation that attach to newly privatized services; and if publicly funded health care is expanded to cover new kinds of health services, there may well be an obligation to pay compensation to foreign (or, at least, US and Mexican) investors that formerly provided those services. Canada’s position is thus fragile and likely to erode over time, but is nonetheless defensible as having struck a balance between our trade policy and health policy objectives. Knowledgeable and incremental acceptance of constraint and obligation for the sake of mutual international benefit is a meaningful expression of sovereignty and policy autonomy in a globalized world. Domestically, risks of NAFTA and GATS obligations can be weighed carefully in any consideration of market-based reform proposals such as those recommended in Canada by the Kirby and Mazankowski reports. Governments are able to make informed and reasoned judgments about the potential risks and costs (in terms of policy constraint, NAFTA financial compensation to investors, or GATS compensation in terms of trade concessions to affected Members) of such policy options as: the expansion of public funding to areas presently covered by private insurance; the withdrawal of public funding from areas that would then be covered by private insurance; expansion of for-profit private health care delivery, or delivery which involves competition between suppliers to the public; and any actions affecting control of foreign entry into the health sector.
In the Chaouili case, however, an unexpected judicial ruling concerning the boundary between public and private health insurance has potentially upset this balance. In the eyes of international law, this was merely the decision of a different branch of government; it is still an expression of Canada’s sovereignty. But from the standpoint of Canadian governments, health policy communities and citizens, the increase of private and foreign service providers, eager to supply insurance for “medically necessary” health care in competition with public insurance, would bring with it a very different set of costs and benefits from those that have been politically bargained for. In the absence of NAFTA or WTO precedents, it is impossible to precisely estimate the net effects, but neither are we limited to mere speculation. There is little doubt that it is the nature and extent of public funding that is the most important criterion for the application of the NAFTA Social Service Reservation, the application of the “governmental authority” exclusion from basic GATS obligations, and the determination of when the GATS obligations of national treatment and market access are triggered in the context of health insurance. And it is precisely the nature and extent of public financing that was challenged in Chaouili.
While we wait for the judiciary to determine the exact boundaries and conditions of the government health care monopoly, and scramble to reduce waiting lists for surgery in case they are deemed to be an unjustified infringement of Section 7 of the Charter, we should consider one other course of action that could help to restore and secure our domestic health policy space. Renegotiating our general NAFTA and WTO obligations may not be a realistic option, but Article XXI of the GATS sets out the procedures for the withdrawal or modification of Members’ specific commitments. The Member concerned must give at least three months’ notice, and then negotiate compensatory adjustments with other countries whose trade interests have been affected, with the compensation applied on an MFN basis. If an affected Member is not satisfied with the compensation offered, it can refer the matter to arbitration. The ability of WTO Members to withdraw their commitments has long been touted by the WTO Secretariat and Member governments as a flexible feature of the GATS. Canada should now put this claim to the test by withdrawing, or at least modifying, its 1995 commitment covering private health insurance. Whatever the cost or difficulty of such a procedure, we can be reasonably certain that it will never be purchased at a lower price.
“The GATS recognizes the rights of WTO Members to provide services in the public sector and Canada and other Members of the WTO are not prepared to compromise this right. Thus, our commitments with respect to “health insurance services” are clearly restricted to supplemental health insurance services provided by private insurers.”
--Government of Canada response to concerns voiced about Canada’s GATS commitments on private health insurance, May 2001.
Although it is seldom remarked upon, the ban on private health insurance has been a fundamental assumption of Canada’s trade policy ever since the North American Free Trade Agreement (NAFTA) and the WTO’s General Agreement on Trade in Services (GATS) took effect over a decade ago. The domestic legitimacy of both treaties in Canada depends in large part on the system of publicly funded health care under the Canada Health Act remaining secure against any challenge that it violates NAFTA or GATS obligations. This separation between health policy and trade policy depends in turn on the maintenance of single-payer public insurance. Of course, whether the reasoning behind the Supreme Court decision in Chaoulli v. Attorney-General (Quebec) will ultimately lead to a removal of the ban on private health insurance across Canada, and, even if it does, whether a de facto government monopoly can legally be preserved through other means, is yet to be determined. We may also wonder just how much it matters that medicare be insulated from NAFTA and the GATS. Is this just a “legitimacy” problem, based on popular fears and misconceptions about trade agreements, or are trade treaty obligations really at odds with the most valuable features of Canadian health care?
Maude Barlow of the Council of Canadians has correctly pointed out that the NAFTA exemption for health care only clearly applies to a publicly funded system delivered on a non-commercial basis. Once a certain threshold of privatization is passed, U.S. private hospital chains would have the right to the same treatment as Canadian for-profit companies. Her next inference—that “in no time, the public system would be bankrupt and we would have an Americanized corporate health-care system”—is characteristically provocative, and more controversial. (It assumes that Canada’s NAFTA obligations sharply distinguish Canada’s situation from that of some European countries relied upon in the Supreme Court’s ruling.) For its part, the WTO admits that provision of services on a commercial or competitive basis would cause them to be covered by the basic “most-favoured nation” (MFN) obligation to extend any advantages conferred upon one foreign service provider to all other WTO Members. It insists, however, that “the implications of MFN are minimal: monopoly suppliers can be maintained, established or reestablished, for example; limitations of any other kind can be imposed on foreign supply.”(“GATS: Fact and Fiction”, 2001). GATS critics suggest that the MFN obligation might nonetheless make it more difficult to reverse privatization and commercialization, since it can have the effect of consolidating commercialization wherever it occurs.
More seriously, it appears that Canadians failed to anticipate the possible repercussions of making full commitments at the WTO in the area of private health insurance in 1995. Even those GATS critics who expressed alarm at the decision were mostly concerned about the need for a stronger Maginot line—i.e. to guard against the possible interpretation and application of GATS rules in WTO dispute settlement panels. (The Charter of Rights has not generally been viewed as the more serious threat in globalization debates.) Of course, when the complex and changing nature of health care services funding and delivery is combined with the broad and largely untested scope of GATS and NAFTA rules, there are bound to be many mysteries and some surprises. But we can safely conclude this much: that the insulation of health care from trade treaties matters, because it affects policy options for health care reform. More specifically, it affects the choice, and cost, of health policy instruments, and the flexibility to reverse or modify market-based innovations in the future.
There are two main instruments for protecting public health care from trade actions. The first is a “carve out” from basic treaty obligations, such as the NAFTA reservation clauses or GATS exemption clause for public services. The scope, effectiveness, and endurance of such carve-outs will be determined by the legal development and application of certain objective criteria: the extent of government regulation and control over delivery of the service; the degree to which the service is provided by not-for-profit organizations; the presence of competitive and commercial markets; and, most importantly, the degree of public versus private funding. The second instrument is the limitation of private health insurance to “supplemental” or non-core medical services, lest obligations in respect of liberalized financial services interfere with the delivery of core health care as a public good (i.e. as something that markets fail to provide efficiently, let alone equitably).
The view that the scope of NAFTA reservations in relation to Health Services is sufficient to protect publicly funded health care in Canada from any NAFTA challenge is a reasonable interpretation from a static perspective, based upon the accepted definitions of public and private health services at the time of NAFTA’s inception. Canada’s Annex I Reservation states that all provincial government measures that were in force as of January 1, 1994 are outside the NAFTA rules relating to national treatment, MFN, and some other disciplines relating to local presence requirements for cross-border services and nationality requirements for senior managers. Any future measures or amendments, however, that exclude or otherwise discriminate against US and Mexican providers of services are contrary to the NAFTA, unless they are saved by the Annex II Social Service Reservation.
Under Annex II, each Party reserved the right to adopt or maintain any measure relating to health services that may be characterized as being with respect to a “social service established or maintained for a public purpose”. The precise scope of this Social Service Reservation is the subject of much debate and speculation. The US Trade Representative in 1995 suggested that the reservation is intended only to cover services “which are similar to those provided by government, such as childcare or drug treatment programs,” so that if those services are supplied by a private firm on a profit or non-profit basis, Chapter Eleven (Investment) and Twelve (Services) would apply. The Canadian government has claimed that, to the contrary, the broad ordinary meaning of “service established or maintained for a public purpose” reflects an intention to permit each Party to NAFTA to decide for itself whether it views a particular service as falling within the reservation. Both of these views appear to be extreme and unlikely to be followed. Legal academics generally agree that an objective test based on general criteria for what constitutes a public service is necessary. Where full state funding is combined with extensive government control over delivery, then there is a very strong case for the application of the reservation. T. Epps and C. Flood argued in the McGill Law Journal in 2002 that full state funding alone is sufficient, even where governments permit competition and for-profit delivery in the interests of efficiency.
There appears to be widespread agreement, therefore, that the degree of public funding is the most important single criterion for what falls within the Social Services Reservation. Accordingly, the simple fact that insured services designated by a provincial government as “medically necessary” are paid for by a public authority is a good indication that such services are also outside the NAFTA. This is probably as true of provinces such as Nova Scotia, Newfoundland, New Brunswick and Saskatchewan, which have no outright prohibition against private insurance of services insured under the Canada Health Act, as it is of those provinces that do. Due to long waiting lists in the public sector, however, a niche for private sector financing has nonetheless begun to appear. If this niche is filled in the marketplace, the condition of government-funded monopoly will disappear. It is already apparent that the Social Services Reservation does not protect measures related to for-profit privately funded services of physicians and other health care professionals; or privately-funded home care or nursing home services. Allowing private insurance for services designated as “medically necessary” would further reduce the scope of this NAFTA reservation.
Canada’s GATS obligations present a similar picture of current insulation coupled with increasing future vulnerability to coverage. The GATS contains an exemption from the most basic MFN and transparency obligations for services “supplied in the exercise of governmental authority”, which are defined in Article I:3 as any service, which is “supplied neither on a commercial basis, nor in competition with one or more service suppliers”. As with the debate over the scope of NAFTA reservations, there has never been a consensus on what exactly these words mean, beyond general agreement that a pure government monopoly that does not charge for its service would meet this definition. While the legal meaning of “competition” in services is unclear, it probably involves consumers being able to choose between “like” services offered by different suppliers. Such a choice between public and private suppliers has not generally been allowed under most provincial health plans, or under the terms of “Public Administration” and “Comprehensiveness” as defined in the Canada Health Act. Similarly, any finding of supply to be “on a commercial basis” would need to consider a range of criteria: whether a service is supplied on a for-profit basis; whether user fees are charged; whether any revenues earned in excess of cost are devoted to fulfillment of a not-for–profit purpose; and the degree of government involvement and control over conditions of service delivery. Most of these criteria, when applied to core medical services as they are currently supplied in Canada, would not indicate their classification as being supplied “on a commercial basis.”
The most onerous WTO/GATS obligations, however, are those which are incurred through specific commitments to accept national treatment and market access obligations in specific sectors. A look at Canada’s Schedule of Specific Commitments show that Canada has avoided undertaking obligations in respect of “health and public education”, consistent with its pronouncements, with one notable exception: private insurance, such as Blue Cross, is categorized as a ‘financial service” for GATS/WTO purposes, just as it is for NAFTA purposes, and Canada in 1995 made a commitment in “life, accident and health insurance services”, subject only to the limitation on market access that these services “must be supplied through a commercial presence” (i.e. through direct investment and establishment within Canada).
Some critics and health policy advocates have worried that public health insurance is possibly already covered under Canada’s GATS commitments on financial services. In response, the Government of Canada has repeatedly assured Canadians that “health care is off the table”, stressing the flexibility of the GATS scheduling methodology and Canada’s preservation of its flexibility to adopt or maintain measures with respect to health services. The government has also maintained that Canada’s commitments with respect to “health insurance services” are clearly restricted to supplemental health insurance services provided by private insurers, since the GATS excludes governmental services that are not ”in competition with one or more service suppliers.” The assumption that medically necessary services are “public” and that supplemental insurance is “private”—that the two areas of insurance are mutually exclusive--- underlies the Government’s decision to make commitments in life insurance and has been repeatedly expressed in its communications with the public.
Clearly, the current insulation of Canada’s health care sector from trade treaty obligations (whether GATS or NAFTA) is bound to come under stress as Canada’s public health system changes, regardless of whether the system expands or contracts. If levels of public funding and public delivery are reduced, health care may be subjected to the higher levels of obligation that attach to newly privatized services; and if publicly funded health care is expanded to cover new kinds of health services, there may well be an obligation to pay compensation to foreign (or, at least, US and Mexican) investors that formerly provided those services. Canada’s position is thus fragile and likely to erode over time, but is nonetheless defensible as having struck a balance between our trade policy and health policy objectives. Knowledgeable and incremental acceptance of constraint and obligation for the sake of mutual international benefit is a meaningful expression of sovereignty and policy autonomy in a globalized world. Domestically, risks of NAFTA and GATS obligations can be weighed carefully in any consideration of market-based reform proposals such as those recommended in Canada by the Kirby and Mazankowski reports. Governments are able to make informed and reasoned judgments about the potential risks and costs (in terms of policy constraint, NAFTA financial compensation to investors, or GATS compensation in terms of trade concessions to affected Members) of such policy options as: the expansion of public funding to areas presently covered by private insurance; the withdrawal of public funding from areas that would then be covered by private insurance; expansion of for-profit private health care delivery, or delivery which involves competition between suppliers to the public; and any actions affecting control of foreign entry into the health sector.
In the Chaouili case, however, an unexpected judicial ruling concerning the boundary between public and private health insurance has potentially upset this balance. In the eyes of international law, this was merely the decision of a different branch of government; it is still an expression of Canada’s sovereignty. But from the standpoint of Canadian governments, health policy communities and citizens, the increase of private and foreign service providers, eager to supply insurance for “medically necessary” health care in competition with public insurance, would bring with it a very different set of costs and benefits from those that have been politically bargained for. In the absence of NAFTA or WTO precedents, it is impossible to precisely estimate the net effects, but neither are we limited to mere speculation. There is little doubt that it is the nature and extent of public funding that is the most important criterion for the application of the NAFTA Social Service Reservation, the application of the “governmental authority” exclusion from basic GATS obligations, and the determination of when the GATS obligations of national treatment and market access are triggered in the context of health insurance. And it is precisely the nature and extent of public financing that was challenged in Chaouili.
While we wait for the judiciary to determine the exact boundaries and conditions of the government health care monopoly, and scramble to reduce waiting lists for surgery in case they are deemed to be an unjustified infringement of Section 7 of the Charter, we should consider one other course of action that could help to restore and secure our domestic health policy space. Renegotiating our general NAFTA and WTO obligations may not be a realistic option, but Article XXI of the GATS sets out the procedures for the withdrawal or modification of Members’ specific commitments. The Member concerned must give at least three months’ notice, and then negotiate compensatory adjustments with other countries whose trade interests have been affected, with the compensation applied on an MFN basis. If an affected Member is not satisfied with the compensation offered, it can refer the matter to arbitration. The ability of WTO Members to withdraw their commitments has long been touted by the WTO Secretariat and Member governments as a flexible feature of the GATS. Canada should now put this claim to the test by withdrawing, or at least modifying, its 1995 commitment covering private health insurance. Whatever the cost or difficulty of such a procedure, we can be reasonably certain that it will never be purchased at a lower price.
Monday, July 04, 2005
Want to amend the B.C. Elections Act? Re-think these three assumptions
Now that
the dust has settled from the referendum debate on electoral reform, politicians in Victoria will soon have to decide whether or not to sweep it under the rug. And that is a real option, despite the strong 58% vote in favour of BC-STV last May. The reason is that, although most people will prefer change if you offer it to them, the intensity of this preference is weak. The issue is simply not a burning one for most British Columbians, and it has been further dampened by the result of the May general election in B.C., which yielded a "normal" legislature with both a strong government and a strong opposition.
So, as long as Premier Campbell is willing to cede his place in history as a pioneer of electoral reform (as a majority of his caucus colleagues and not a few opposition members are hoping he will), there is little chance that the momentum for change will be sustained. But, if we were to act, how should we proceed? It should be remembered that the debate thus far has been conducted mostly within the ground rules of the B.C. Citizens' Assembly on Electoral Reform, on the basis of three assumptions:
1) The B.C. Legislature shall continue to have 79 constituencies (ridings).
This assumption was agreed upon by the Citizens' Assembly for a very simple, and very sensible political reason: it was felt that if the Assembly recommended more than 79 ridings, the referendum would be decided by an antipathy toward having more politicians working in Victoria. In order to give its recommendation a good chance of succeeding, the number of constituencies had to be frozen. The difficulty with this assumption is that the population of British Columbia has grown by about half a million souls since the last census in 1996. Simple math tells us that in order to maintain existing levels of per-capita representation (e.g. constituencies of roughly 50,000 people), we need to expand the Legislature by at least ten seats. Since most of the population growth has been in the Lower Mainland, constituencies in the more sparsely populated north and interior will have to be expanded and stretched just to stay within legal limits (which state that constituencies should not deviate more than 25% from the average.) Put simply, we need to add a number of seats just to maintain absolute levels of per capita representation, especially outside of Vancouver.
2) The voters shall only be offered one recommendation by the Citizens' Assembly.
This assumption was built into the terms of reference for the Citizens' Assembly. Understandably enough, it helps to make the referendum decision a manageable one, between the status quo and the one best system as decided upon by the Assembly. (There was inadequate explanation and understanding of these two options in the spring election; this difficulty would have been compounded by a multiple-choice question.)
Nevertheless, it is possible to design a two-part referendum in which the first question asks voters whether they would like a new electoral system that offers them greater choice and greater proportionality of result (briefly explaining what that means); and then asks them to choose between two models or rank three models in order of preference.
3) A 60% threshold is required for the ratification of the recommended proposal.
This requirement was added by the government, along with the regional threshold of at least a majority of voters in 60% of ridings, probably at the urging of a Liberal caucus who feared radical change. It has engendered some curious debate among political commentators. Those critical of the super-majority have wondered why 50% plus one has been sufficient to decide prohibititon, conscription, Newfoundland joining Confederation, and Quebec sovereignty, but not B.C.'s choice of electoral system. Others (most prominently Norman Spector) have stressed that BC-STV is "constitutional" in that it is a radical proposal that fundamentally alters the ground rules of political life; and that, legally, The Secession Reference decided that a simple majority vote was not sufficient to determine Quebec sovereignty.
In retrospect, Dr. Spector was probably right to regard BC-STV as radical enough to justify a higher threshold, although the second part of his argument (that secession of Quebec would require a consitutional amendment by 2/3 of theprovinces representing a majority of the population) is a tad too legalistic--we all know that if 58% of Quebeckers ever vote for sovereignty, they will be gone! In any case, the precedent has been set in BC that for changes as radical as BC-STV, an over-all super-majority of 60% is required. This leads to an interesting question for reformers, and for the Citizens' Assembly, if they are ever reconstituted: would they be willing to accept a less radical proposal than BC-STV, in exchange for a simple majority threshold?
Where We Are Now?
In the past three years, British Columbians have:
the dust has settled from the referendum debate on electoral reform, politicians in Victoria will soon have to decide whether or not to sweep it under the rug. And that is a real option, despite the strong 58% vote in favour of BC-STV last May. The reason is that, although most people will prefer change if you offer it to them, the intensity of this preference is weak. The issue is simply not a burning one for most British Columbians, and it has been further dampened by the result of the May general election in B.C., which yielded a "normal" legislature with both a strong government and a strong opposition.So, as long as Premier Campbell is willing to cede his place in history as a pioneer of electoral reform (as a majority of his caucus colleagues and not a few opposition members are hoping he will), there is little chance that the momentum for change will be sustained. But, if we were to act, how should we proceed? It should be remembered that the debate thus far has been conducted mostly within the ground rules of the B.C. Citizens' Assembly on Electoral Reform, on the basis of three assumptions:
1) The B.C. Legislature shall continue to have 79 constituencies (ridings).
This assumption was agreed upon by the Citizens' Assembly for a very simple, and very sensible political reason: it was felt that if the Assembly recommended more than 79 ridings, the referendum would be decided by an antipathy toward having more politicians working in Victoria. In order to give its recommendation a good chance of succeeding, the number of constituencies had to be frozen. The difficulty with this assumption is that the population of British Columbia has grown by about half a million souls since the last census in 1996. Simple math tells us that in order to maintain existing levels of per-capita representation (e.g. constituencies of roughly 50,000 people), we need to expand the Legislature by at least ten seats. Since most of the population growth has been in the Lower Mainland, constituencies in the more sparsely populated north and interior will have to be expanded and stretched just to stay within legal limits (which state that constituencies should not deviate more than 25% from the average.) Put simply, we need to add a number of seats just to maintain absolute levels of per capita representation, especially outside of Vancouver.
2) The voters shall only be offered one recommendation by the Citizens' Assembly.
This assumption was built into the terms of reference for the Citizens' Assembly. Understandably enough, it helps to make the referendum decision a manageable one, between the status quo and the one best system as decided upon by the Assembly. (There was inadequate explanation and understanding of these two options in the spring election; this difficulty would have been compounded by a multiple-choice question.)
Nevertheless, it is possible to design a two-part referendum in which the first question asks voters whether they would like a new electoral system that offers them greater choice and greater proportionality of result (briefly explaining what that means); and then asks them to choose between two models or rank three models in order of preference.
3) A 60% threshold is required for the ratification of the recommended proposal.
This requirement was added by the government, along with the regional threshold of at least a majority of voters in 60% of ridings, probably at the urging of a Liberal caucus who feared radical change. It has engendered some curious debate among political commentators. Those critical of the super-majority have wondered why 50% plus one has been sufficient to decide prohibititon, conscription, Newfoundland joining Confederation, and Quebec sovereignty, but not B.C.'s choice of electoral system. Others (most prominently Norman Spector) have stressed that BC-STV is "constitutional" in that it is a radical proposal that fundamentally alters the ground rules of political life; and that, legally, The Secession Reference decided that a simple majority vote was not sufficient to determine Quebec sovereignty.
In retrospect, Dr. Spector was probably right to regard BC-STV as radical enough to justify a higher threshold, although the second part of his argument (that secession of Quebec would require a consitutional amendment by 2/3 of theprovinces representing a majority of the population) is a tad too legalistic--we all know that if 58% of Quebeckers ever vote for sovereignty, they will be gone! In any case, the precedent has been set in BC that for changes as radical as BC-STV, an over-all super-majority of 60% is required. This leads to an interesting question for reformers, and for the Citizens' Assembly, if they are ever reconstituted: would they be willing to accept a less radical proposal than BC-STV, in exchange for a simple majority threshold?
Where We Are Now?
In the past three years, British Columbians have:
- rejected the existing First-Past-the Post system, by an almost 58% margin;
- rejected BC-STV , by failing to ratify it by 60%;
- rejected the kind of strong party-list PR proposed by Adriane Carr and the Green Party, both when Carr attempted a Citizens' Initiative in 2002 and when The Citizens' Assembly explicitly considered and rejected this kind of proposal.
I have suggested in previous columns that these results point us toward a manageable number of general options for meaningful electoral reform. One would be a moderate Mixed-Member Plurality system that the Citizens' Assembly felt constrained not to choose, because of the Assembly's anti-party populism, the greater voter choice embodied in STV, and because the Assembly felt that it could not make MMP work satisfactorily within a total limit of 79 seats. A legislature of 90 seats, with between 1/4 and 1/3 of the seats allocated to 4-6 regional, open-list multi-member consituencies, would provide a modest injection of proportionality that would both raise the threshold for the achievement of majority government and lower the threshold for third parties, without throwing the door wide open to a factionalized parliament.
Another option would be a more moderate version of STV that is less proportional than BC-STV but which would still make "every vote count". In a 90-seat legislature, one could simply have the northern half of the province represented by 6 dual-member constituencies and the southern half of the province represented by 26 three-member districts. This 90-seat "STV-Lite" proposal would reduce the problems of "monster ridings" in the north and "monster ballots" in the south under BC-STV. Majority governments would be harder to come by under STV-lite than they are now, but they would not necessarily be rare. They would certainly have to be more inclusive and consensual than they are now, however.
If "regional open list" MMP-lite and "STV-lite" were the only reform options on the ballot, the argument could be made that the requirement of a 60% over-all vote is not necessary. A two-part ballot could be constructed asking voters first, if they favour a form of proportional representation, and, in the second part of the ballot, which of these two forms that they prefer. (BC-STV could be added to this list, but precedent would make it impossible to argue for a 50% threshold, and a clear majority decision will be less likely to result. )
Some have argued that such talk of abandoning BC-STV is simply throwing the debate wide open again; it is to open Pandora's box. Asking the Legislature to enact these or similar recommendations is to invite either the reality or the appearance of conflict of interest that the Citizens' Assembly was set up to avoid. I have tried to argue that the road we have travelled over the past three years has led us to this point; we only need to take the next step.
Friday, May 20, 2005
Referendum Result Points to More Modest Electoral Reform
{The following blog also appeared as an article in the Williams Lake Weekend Tribune on Friday, May 27, 2005--MC}
By casting over 57% of their votes in favour of BC-STV, just short of the threshold required for approval, British Columbians have embraced electoral reform without fully committing to a system that was either too radical or too complicated for many citizens. This result is unsurprising, since one of the constraints on the mandate of the Citizens’ Assembly was that it could only make a single recommendation to the electorate. The general question of the desirability of institutional change, about which I believe there is consensus, became conflated with discussion of the merits a particular unique proposal, about which there is much uncertainty and disagreement. No one really knows to what extent BC-STV (as opposed to the idea of reform) has been endorsed by the B.C. electorate.
Both Premier Gordon Campbell and Leader of the Opposition Carole James appear willing to carry the reform process further, so as to not relinquish the leading role that British Columbia has played in electoral reform. Logic and civic duty require that they do so within certain parameters that respect both the reasons given by the Citizens Assembly for its recommendation, and the various reasons why the 60% threshold was not met.
Accepting these parameters yields three options. First, we can correct the most serious flaw in the referendum process by devoting more time and resources to educating the public about the pros and cons of our existing single-member plurality (SMP)system and BC-STV, and then have a re-run of the referendum.
The trouble with this suggestion is that it throws us back on the horns of a dilemma between a status-quo that has been rejected and a novel system with too many drawbacks—such as vast ridings in the north and long ballots in the south. We are forced to choose between the low proportionality of SMP, which almost always yields majority government provincially, and the high proportionality of BC-STV, which almost never will. B.C. voters are offered no middle ground.
These considerations lead to the second option. The referendum result can be interpreted as endorsing the general principle of greater voter sovereignty as expressed by STV, but not endorsing a system change as radical as BC-STV. We may therefore wish to adopt a more modest proposal. Taking some of the geographically largest constituencies out of the mix (and keeping them as single–or double-member ridings), it becomes practicable to simply and equitably divide the rest of the province into 24 or 25 3-member STV districts. “STV-Lite” would offer less over-all proportionality than BC-STV, but that would arguably be a virtue. Proportionality for smaller parties in many PR-systems has all too often given them disproportional power. Most British Columbians would undoubtedly support raising the bar for achieving a majority government (typically around 38-39% of the total popular vote, and just 36% in the recent British election), in order to create more inclusive, moderate and representative governments, without completely throwing the majority government baby out with the bath water.
The third option would be a modest type of Mixed-Member Plurality (MMP). The Citizens’ Assembly rejected MMP because in order to achieve proportionality in a legislature limited to 79 seats, voters would be required to choose between province-wide party lists, and single-member constituencies would have to be nearly doubled in size. This led to a litany of criticisms of MMP: that it meant overly large constituencies, excessive central party control, “two classes of MLAs” , and comparative lack of voter choice.
However, being less ambitious about proportionality could permit a version of MMP that is far more attractive. Consider the following example. British Columbia could return, as nearly as possible, to the same 57 single-member, first-past-the post constituencies that it had over 20 years ago. This would guarantee a level of local representation to which British Columbians are accustomed. The remaining 22 seats could then be allocated among five 4- or 5-member regional districts (two in the Lower Mainland, and the others on Vancouver Island and in the southern and northern interior). Crucially, these regional seats would be open-list (voters would be able to rank the candidates on the party list in order of preference). This combination of regionality and open list ballot structure would improve voter choice and ensure that list members continue to serve local constituencies. Partial proportional representation in the form of “regional, open –list MMP” would achieve a similar degree of modestly-improved proportionality as STV-lite, but would be friendlier to political parties as aggregators of interests and crucibles of policy. Given the prophylactic effect that party discipline can have upon the influence of narrow and parochial pressure groups, that may not be such a bad thing.
How do we choose between these various options? Let us have a two-part referendum process that separates the general question of reform from the specifics of particular reforms. The first part would be a question asking citizens whether they want a new, more proportional electoral system. This should easily meet the required 60% level of approval that was narrowly missed on May 17, as well as clearing the hurdle of majority approval in 60% of constituencies. The second part of the referendum would give voters a choice between all three of the options described above (BC-STV, STV-lite and regional, open-list MMP). To avoid conflict of interest, the specifics of each of these three options could be spelled out further by a reconstituted Citizens’ Assembly. British Columbia will then truly have become the model of democratic reform for the entire country.
By casting over 57% of their votes in favour of BC-STV, just short of the threshold required for approval, British Columbians have embraced electoral reform without fully committing to a system that was either too radical or too complicated for many citizens. This result is unsurprising, since one of the constraints on the mandate of the Citizens’ Assembly was that it could only make a single recommendation to the electorate. The general question of the desirability of institutional change, about which I believe there is consensus, became conflated with discussion of the merits a particular unique proposal, about which there is much uncertainty and disagreement. No one really knows to what extent BC-STV (as opposed to the idea of reform) has been endorsed by the B.C. electorate.
Both Premier Gordon Campbell and Leader of the Opposition Carole James appear willing to carry the reform process further, so as to not relinquish the leading role that British Columbia has played in electoral reform. Logic and civic duty require that they do so within certain parameters that respect both the reasons given by the Citizens Assembly for its recommendation, and the various reasons why the 60% threshold was not met.
Accepting these parameters yields three options. First, we can correct the most serious flaw in the referendum process by devoting more time and resources to educating the public about the pros and cons of our existing single-member plurality (SMP)system and BC-STV, and then have a re-run of the referendum.
The trouble with this suggestion is that it throws us back on the horns of a dilemma between a status-quo that has been rejected and a novel system with too many drawbacks—such as vast ridings in the north and long ballots in the south. We are forced to choose between the low proportionality of SMP, which almost always yields majority government provincially, and the high proportionality of BC-STV, which almost never will. B.C. voters are offered no middle ground.
These considerations lead to the second option. The referendum result can be interpreted as endorsing the general principle of greater voter sovereignty as expressed by STV, but not endorsing a system change as radical as BC-STV. We may therefore wish to adopt a more modest proposal. Taking some of the geographically largest constituencies out of the mix (and keeping them as single–or double-member ridings), it becomes practicable to simply and equitably divide the rest of the province into 24 or 25 3-member STV districts. “STV-Lite” would offer less over-all proportionality than BC-STV, but that would arguably be a virtue. Proportionality for smaller parties in many PR-systems has all too often given them disproportional power. Most British Columbians would undoubtedly support raising the bar for achieving a majority government (typically around 38-39% of the total popular vote, and just 36% in the recent British election), in order to create more inclusive, moderate and representative governments, without completely throwing the majority government baby out with the bath water.
The third option would be a modest type of Mixed-Member Plurality (MMP). The Citizens’ Assembly rejected MMP because in order to achieve proportionality in a legislature limited to 79 seats, voters would be required to choose between province-wide party lists, and single-member constituencies would have to be nearly doubled in size. This led to a litany of criticisms of MMP: that it meant overly large constituencies, excessive central party control, “two classes of MLAs” , and comparative lack of voter choice.
However, being less ambitious about proportionality could permit a version of MMP that is far more attractive. Consider the following example. British Columbia could return, as nearly as possible, to the same 57 single-member, first-past-the post constituencies that it had over 20 years ago. This would guarantee a level of local representation to which British Columbians are accustomed. The remaining 22 seats could then be allocated among five 4- or 5-member regional districts (two in the Lower Mainland, and the others on Vancouver Island and in the southern and northern interior). Crucially, these regional seats would be open-list (voters would be able to rank the candidates on the party list in order of preference). This combination of regionality and open list ballot structure would improve voter choice and ensure that list members continue to serve local constituencies. Partial proportional representation in the form of “regional, open –list MMP” would achieve a similar degree of modestly-improved proportionality as STV-lite, but would be friendlier to political parties as aggregators of interests and crucibles of policy. Given the prophylactic effect that party discipline can have upon the influence of narrow and parochial pressure groups, that may not be such a bad thing.
How do we choose between these various options? Let us have a two-part referendum process that separates the general question of reform from the specifics of particular reforms. The first part would be a question asking citizens whether they want a new, more proportional electoral system. This should easily meet the required 60% level of approval that was narrowly missed on May 17, as well as clearing the hurdle of majority approval in 60% of constituencies. The second part of the referendum would give voters a choice between all three of the options described above (BC-STV, STV-lite and regional, open-list MMP). To avoid conflict of interest, the specifics of each of these three options could be spelled out further by a reconstituted Citizens’ Assembly. British Columbia will then truly have become the model of democratic reform for the entire country.
Tuesday, May 10, 2005
So What's New About B.C.’s Politics of Economic Growth?
I recently heard someone say that back in 1998, 17,000 people left British Columbia in search of economic opportunities elsewhere. While this remark was intended as a criticism of the NDP, it reminded me of the pervasive tendency in politics to focus on short-term fluctuations in unemployment and economic activity instead of a more important measure of our economic well-being and policy—our standard of living. This distinction between total GDP and average income appears quite academic. But if we succeed in raising employment through a lower wage, or in raising incomes in a particular sector, or in drawing a lot of labour from the rest of Canada, but do not raise the average incomes of British Columbians and Canadians in the process, then what have we actually accomplished? In 1986 UBC economist Robert C. Allen wrote an important article on the history of the B.C. economy,[1] which asked this very question. His answer contained a perceptive critique of the Social Credit economic policies of the time . The essence of the Social Credit strategy in the early and mid-1980s was to promote growth by cutting social and education spending, thereby freeing monies to create “real jobs” through tax cuts, “Special Enterprise Zones”, and multi-billion dollar investments in megaprojects like the Northeast Coal Project ,the Coquihalla Highway, the Site C dam and Expo 86. Professor Allen showed that although government-induced economic surges directly increased B.C.’s exports and GDP, that they were not as likely to raise GDP per capita. In the case of Northeast Coal, profits from mining and shipping coal and the rise in real estate values in Tumbler Ridge were outweighed by the cost of drawing half a billion dollars from provincial general revenue. Allen concluded that such unprofitable megaprojects lowered average income, and that a fixation upon commodity exports and secondary manufacturing were diverting attention and resources away from policies that would be more effective in raising economic welfare-- such as increased spending to fight unemployment, helping resource communities to adjust to technical change, and expansion of educational services, especially in the areas outside of greater Vancouver and Victoria. A fascinating part of Professor Allen’s analysis was its illumination of B.C.’s polarized politics, showing how important constituencies of both the right and the left had benefited financially from rapid subsidized growth. These included developers and owners of residential property in the vicinity of subsidized projects, along with the members of leading private sector unions in affected industries. How well does this picture describe B.C. in subsequent years? While the NDP’s commitment to maintain health and education spending through the 1990s might have been an improvement over Socred restraint, Glen Clark’s attempts to increase the number of well-paying blue-collar union jobs in the forest, construction and ship-building trades through such devices as the Jobs and Timber Accord and the Fast Ferries project epitomized the left side of the coin that Professor Allen described. They were just as unsuccessful at raising average incomes as Bill Bennett’s most notorious boondoggles. Premier Campbell’s background as a real estate developer and his Expo-like focus on 2010 naturally invite comparison with Bill Bennett. The tax and service cuts in Campbell’s first three years in office are reminiscent of the Socred restraint era, but there are also important differences. For one thing, the Liberals probably have a broader concept of economic diversification than did the Socreds. By ending appurtenancy (which guaranteed the local processing of timber) they have shown that they are no longer as wedded to the conventional theory that stresses secondary manufacturing as the sine qua non of economic development. They also demonstrate a deeper appreciation of the importance of human capital than did the Socreds, by continuing the NDP’s expansion of post-secondary education, particularly in the interior of the province, although the raising of fees and cancellation of grants have adversely affected cost and access for students. But in doing everything he politically can to stimulate economic activity, Premier Campbell has been far too indiscriminate. His application of supply-side tax cuts and their predictable consequences for revenue, the tortuous saga of B.C. Rail, and his would-be privatizations of liquor stores and the Coquihalla Highway, all smack of ideological self-indulgence colliding with political reality. Cuts to environmental protection and lax enforcement of regulations, even if they have enhanced the business climate, carry long-run costs that have not been fully accounted for. In these respects, B.C.’s new politics of economic growth still bear a disturbing resemblance to the old. notes: [1] R.C. Allen, “The B.C. Economy: Past, Present, Future,” in R.C. Allen and G. Rosenbluth, Restraining the Economy: Social Credit Economic Policies for B.C. in the Eighties. Vancouver: New Star Book, 1986, 9-42. |
Sunday, May 01, 2005
Welcome to My Web Log
I have created this "blog" as a place to house my weekly or bi-weekly commentaries on public affairs, with a focus on British Columbian and Canadian politics and public policy. Some of these columns may have previously appeared in newspapers or have been referred to in my media commentaries. I have frequently been interviewed or consulted by journalists on CBC radio and television and in newspapers, including the Globe and Mail, The Georgia Straight, and the Prince George Citizen.
Other columns are either too rough or too esoteric to have been published elsewhere; they may nonetheless prove useful to many people who are studying issues ranging from electoral reform to trade policy.
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