Chapter 5: The Branches of Government

June 4th, 2015

Of the judiciary, legislative and executive branches of government, the latter most directly impacts citizens.

Executive: “branch of government concerned with the implementation and enforcement of laws and other authoritative decisions of the state. The executive also formulates public policy and provides political leadership.”

The Executive

Dual Executive: “posts of head of state and head of government are divided , and each is held by a separate officeholder. In a parliamentary system, the head of state is a constitutional monarch or an elected president. PM is head of government (Canada, UK, France).”

Single Executive: “head of state and head of government is combined and held by a single office holder. Typical in presidential systems (US, Argentina, Mexico).” – Heard

Authoritarian executive: All power in the hands of the leader

Three types of Executives

1. Political Leadership◦ Most legislation proposed by executive

2. Implement laws◦ Legislative approves it, but up to executive to

implement

3. Make Rules and Regulations◦ Putting meat on the bones

4. Administer Departments and Agencies◦ Relies on lower level specialists to administer

wide range of responsibilities

Executive Functions

Cabinet Solidarity: members of Cabinet must publicly support all government policy, even if they, personally, disagree with it

Cabinet meetings are a venue for dissent

Cabinet Ministers who cannot live up to this requirement stop being Cabinet Ministers (Michael Chong, Robin Cook)

Cabinet

Ministerial Responsibility: Ministers are responsible to parliament not just for their own actions, but also for those working in the administrative wing of the department.

With power being concentrated in the Executive, how are governments held accountable in parliamentary democracy?◦ Financial Auditing◦ Question Period◦ The Media

Cabinet part II

Manage the day-to-day responsibilities that help make the country run

Bureaucracy has significant negative connotations, laziness, inefficiency etc.◦ To run like a business,

or not?

Weber: Bureaucracy most rational form of governance

Bureaucracy

Organized hierarchically Specialization/Expertise Decisions based on impersonal and non-

partisan rules Demarcation of authority between

departments Merit Advancement through achievement or

seniority

Traits of an Effective Bureaucracy

Top advisor in the department Usually recruited from public service

Offer expert advice and identification of issues

Primary point for input from lobbyists Fine tuning rules within laws and public

policies Managing the department

Deputy Ministers

These are the bureaucrats we’re most familiar with – front line customer service.

Responsibilities:◦ Implementation of Public

Policies◦ Enforcing Rules◦ Interpreting Public

Policies◦ Adjudicating

Line Officials

Merit rather than Patronage (1918)

Tenure, helps build expertise

Neutrality, non-partisanship

Anonymity, helps avoid charges of partisanship

Representativeness – better understanding of groups services are intended to help

Key Elements of a Professional Bureaucracy

Departments◦ Hands-on Minister intervention, high responsibility to

parliament

Regulatory Agencies◦ Appointed by Minister, but as an adjudicating body,

minister cannot influence

State-Owned Corps/Crown Corps◦ Arms-length from government. Corporate heads have

significant freedoms of action within mandate, though often financed by government

Bureaucratic Forms

While bureaucrats serve government, the power of bureaucrats can grow over time.◦ Expertise, Longevity, Ministerial Responsibility

Governments have moved to change this relationship◦ New DMs with new Ministers◦ Hiring more political staff to offset expertise of

bureaucrats who may not share government ideology◦ Using Central Agencies to increase accountability◦ Political Parties with a vision

Controlling the Bureaucracy

Philosophy developed out of 1980s Post-War boom had begun to fade, debt

increase Solution?

◦ Run government like a business! Privatization, cuts to welfare state Incorporation of performance measurement

Separation of Administration from politics Aim to make government spend its

resources most efficiently

New Public Management

A number of countries embraced this fully, others less so (UK, US and Aus; Canada)

Critique 1: Efficiency is only one part of service; ‘due process vs red tape’ - protections?

Critique 2: Quantification of outputs/outcomes can be virtually impossible to meaningfully measure

Critique 3: Fallout is not immediately obvious. Deregulation of capital markets in the 1980s led to the 2008 economic collapse.

Critique 4*: Too many managers…

NPM in Practice

Legislature: “An institution with primary responsibility to make laws”

Role MUST be defined in Constitution, role must be legislative (law), not just advisory◦ 189 in the world,

many for show

Unicameralism vs Bicameralism

What is a Legislature?

Lower Houses◦ Rep by Pop

House of Commons House of

Representatives

Upper Houses◦ Rep by Region

US Canada

◦ Senate◦ Chamber of Sober

Second Thought

Upper and Lower Houses: The Bicameral Legislatures

The independent legislature, where the future remains unwritten◦ The United Kingdom

The constitutionally constrained legislature◦ The United States

The mixed legislature◦ Canada

Three Kind of Legislatures

To Legislate: Passing, debating and improve laws (bills)◦ Debate, Endorse and challenge executive, Inquire

Socialization◦ Education

To Represent

Primary Functions of the Legislature

How, though, do we define representation?

Who ought one represent?◦ Their voters?◦ Their constituents?◦ Interest groups?◦ Social groups?◦ Ethnicity?

Delegate vs Trustee?◦ Protecting Minorities and Tyranny of the Majority?◦ Does the representative interject their own opinion or simply

represent the interest of the constituents they represent

Representation: A Complicated Proposition

Making a Law in Canada

If senate amends, go backs to house. Either accept changes, or send it back to senate Royal Assent

House of Commons◦ First Reading◦ Second Reading◦ Committee Stage◦ Report Stage◦ Third Reading

Senate◦ First Reading◦ Second Reading◦ Committee Stage◦ Report Stage◦ Third Reading

Relative nature of what is just

Within state◦ Legalization of marijuana◦ Legalization of prostitution◦ Legalization of euthanasia

Across states◦ Adultery◦ War on drugs◦ SSM

Considering Justice

In many countries, roles and responsibilities are clearly defined in the constitution

1. The Constitutionality of Laws

2. Interpret Laws

3. Adjudicate disputes

The Judiciary: Roles and Responsibilities

Court System in Canada

The Judicial Committee of the Privy Council and the Supreme Court of Canada

The Top Courts of Canada

Common Law: Primary law practiced in the UK, Canada, India (among other and former commonwealth countries)

“precedent from relevant cases in the past are applied to current cases. Judges are bound by precedence and should decide like cases similarly.”

Stare Decisis: Courts are bound by the decisions of other courts (all other things being equal).

The Common Law

The Civil Code: Quebec, Western Europe and Former French Colonies

Napoleon and the Holy Roman Empire

Each case should have the principles of law applied to it in the current context (ie Past decisions should not bind current decisions)

In practice, judges still pay attention to past decisions

The Civil Code

Constitutional decisions often impact rights of the individual

Some decisions are contentious because laws are often opaque in language and constitutions are living documents.

◦ Big M Drug Mart (1985)◦ R v Morgantaler (1988)◦ Electoral Boundaries Reference (1991)◦ Delgamuukw v BC (1997)◦ Vriend v Alberta (1998)◦ M. v H. (1999)◦ SSM reference (2004)◦ Canada v Bedford (2013)◦ Tsihlqot’in v. BC (2014)

Judges, the Constitution and the Interpretation of Unclear Laws

Appointment◦ Creature of the government?

Election◦ Owe favours to those who helped you get

elected?

Judicial activism◦ Judges have hidden agendas that impact their

decisions

How do you become a judge?

Parliamentary System◦ Constitutional Monarchies◦ Parliamentary Republics

Presidential System◦ Semi-presidential system

Types of Government

Dual Executive◦ Fused powers

Position of Head of State is hereditary

Different rules of ascension – complicated to change◦ Canada, the UK, Norway, Japan

Queen’s Representatives

Advice of Parliament

Constitutional Monarchies

Dual Executive◦ Usually a fused executive (though president separate)

While head of state is President, not a Presidential system◦ (eg Austria, Germany, Ireland, Italy, Greece, India)

Sometimes directly elected, but usually indirectly elected

PM appointed by President, usually representative of largest party in parliament

PM provides President advice, President bound to act on PMs advice (very little independent power)

Parliamentary Republics

Primarily the US, Central and South America

Extreme Separation of Powers, desire to ensure no one office holds too much power◦ Congress and Cabinet

Head of State and Head of Government are the same person

The Presidential System - 1

Strong ‘checks and balances’, President can veto Congress, Congress can veto President

Shared legislative power with Senate, Congress◦ International

agreements, Appointments

The Presidential System - 2

Set election dates mean HoS has no responsibility/ability to dissolve legislature

President can’t be voted out by non-confidence (though, can be impeached “Treason, Bribery or Other High Crimes or Misdemeanors”)

Presidential System - 3

A mix of parliamentary and presidential systems

Elected president, though unlike parliamentary republic, president has power◦ Examples: France, Russia (sometimes), Finland, Poland

President is, ostensibly, the head of government and head of state. Though, PM runs day to day government

President can, often, fire PM, even with confidence of house ◦ (France does things differently)

Semi-Presidential System