Saturday, June 09, 2007

Gordon Campbell and the Rule of Law

It is remarkable how chickens keep coming home to roost from Gordon Campbell's first two reckless, self-indulgent, ideologically-driven years in power. His assurances in the 2001 election that he would not privatize BC rail, and that there would be no need for drastic cuts in social services because his planned 20% tax cuts would "pay for themselves" (what planet was he living on when Reagan's supply side experiment yielded the biggest deficit in human history?) were plainly disingenuous.

These statements were not "Noble Lies" motivated by the need to "get BC moving again". They were simply a reflection of Campbell's determination to leave nothing to chance, and to not get burned again electorally--as he had been in the 1996 election, when he was probably more candid than his redoubtable opponent, Glen Clark. The deplorable paradox was that if in 1996 he was honest when he couldn't afford to be (i.e. about BC Rail and possible social services cuts), in 2001 he failed to be honest when he could afford to be, making a long list of unnecessary promises when none were needed to win. The Liberals later claimed that they had kept "over 90%" of those promises. If your spouse or employer said that about their contracts with you, wouldn't you be intensely curious about which 10% they didn't keep?

The simple truth is that ripping up collective agreements with health care workers in 2002 was not a "reasonable limit" on workers' legal rights necessitated by soaring health care costs or spiralling debt, except perhaps insofar as the government needed to pay for those ill-conceived tax cuts that were supposed to "pay for themselves". (Those cuts could have easily been phased in over a 4-or-5 year period, making it possible, or at least more possible, for the government to keep all of its promises.) And when BC's economy finally did turn around, it wasn't because of cuts to Health, Education, or 24% cuts to the budgets of Children and Families or other Ministries, but because of rising commodity prices. Even a utilitarian recognizes that when government inflicts unnecessary pain to achieve the common good, it is being a bad government.

Yesterday's Supreme Court ruling in '>Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 makes essentially the same case, but from a "rights" perspective. It is significant because it makes crystal clear that section 2(d) of the Charter of Rights and Freedoms, which guarantees "freedom of association," includes a procedural right to collective bargaining. This effectively corrects the Court's early Charter labour jurisprudence, which contained no such recognition; the Court cited both pre-Charter common law rights going back centuries and Canada's international treaty commitments in their reasons for changing the law. This right cannot be "substantially interfered with" by a government measure, i.e. when that measure (1) affects the capacity of the union members to come together and pursue collective goals in concert; and (2) when the manner in which the measure impacts on the collective right to good faith negotiation and consultation. Needless to say, the Court found the Campbell government's draconian Part 2 of the Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2 (“Act”), easily met this definition of substantial interference and was violative of the Canadian Charter of Rights and Freedoms guarantees of freedom of association (s. 2(d)) and equality (s. 15). In finding that the law could not be saved by the Charter's section 1 "reasonable limits" clause, the Court stressed the government's complete failure to undertake adequate consulation or to consider less restrictive means of obtaining their objectives:

" The evidence establishes that there was no meaningful consultation prior to passing the Act on the part of either the government or the HEABC (as employer). The HEABC neither attempted to renegotiate provisions of the collective agreements in force prior to the adoption of Bill 29, nor considered any other way to address the concerns noted by the government relating to labour costs and the lack of flexibility in administrating the health care sector. The government also failed to engage in meaningful bargaining or consultation prior to the adoption of Bill 29 or to provide the unions with any other means of exerting meaningful influence over the outcome of the process (for example, a satisfactory system of labour conciliation or arbitration). Union representatives had repeatedly expressed a desire to consult with government regarding specific aspects of the Act, and had conveyed to the government that the matters to be dealt with under the Act were of particular significance to them. Indeed, the government had indicated willingness to consult on prior occasions. Yet, in this case, consultation never took place. The only evidence of consultation is a brief telephone conversation between a member of the government and a union representative within the half hour before the Act (then Bill 29) went to the legislature floor and limited to informing the union of the actions that the government intended to take.

This was an important and significant piece of labour legislation. It had the potential to affect the rights of employees dramatically and unusually. Yet it was adopted with full knowledge that the unions were strongly opposed to many of the provisions, and without consideration of alternative ways to achieve the government objective, and without explanation of the government’s choices. "
('>Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 , paragraphs 159-160).

It is also important for British Columbians to note the many strong parallels between this run-in with the law and that other major legal contest that the government has been embroiled in during this past week, the long-simmering Basi-Virk trial. Both cases (1) start with Campbell government rushing to break a central campaign promise; (2) the government getting into legal trouble because of its inattention to procedural values; and (3) the government probably making matters worse by trying to spin, manage, control and otherwise drag the resulting legal conflict out as long as possible.

In terms of centralization of power, obsession with information control and communications, secrecy, and hostility to procedural norms, this government rivals and in some ways exceeds the Clark government that it so self-righteously condemned while in Opposition. And it is reasonable to ask whether Gordon Campbell can help himself. He is determined to leave nothing to chance; he is a control freak with the most centralized party and administration since W.A.C. Bennett. While those traits can sometimes help to avoid trouble and yield political benefits (look how quickly the government was able to change direction on land claims and climate change), they can also land people in some very hot water, as political leaders from Richard Nixon to Glen Clark have learned to their sorrow.

This, surely, must count as the Campbell government's Achilles heel.

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