The BC NDP should reconsider Bill 7

Now, more than ever, we need good democratic government

We need to talk about Bill 7. Currently at first reading before the legislature in British Columbia, the bill does a lot of things, but in essence, one might think of it as a kind of war-time war measures act, empowering cabinet to act in place of the legislature in a number of ways.

To be sure, these are unusual times, calling for rapid and creative responses. The threat posed by the US President’s tariffs and annexation talk is real, and requires a variety of quick responses. However, this act goes considerably further than that, essentially empowering cabinet to act in place of the legislature in a manner reminiscent of wartime acts of old, without the checks built into contemporary Emergency Acts.

Accordingly, a number of critics, myself included, have already spoken up about the bill. Reflecting further, I think it risks doing more harm than good in a number of interrelated ways. Above all, it limits democratic accountability of government, which will produce a number of negative outcomes.

I’ll walk through the reasoning in a moment, but to skip to the end, I think the NDP would do the province (and itself) a world of good by amending the bill to:

1. Narrow the focus to specifically those issues and powers they can clearly justify as necessary now specifically on the grounds of quick action being advantageous (e.g. changes to tolls on BC roads for commercial vehicles);

2. Shorten the sunset provision ending the powers to a year; and

3. Insert a specific and explicit requirement to submit any decisions taken by Bill 7 to the legislature for later ratification and incorporation into law.

Photo: BC Legislature, CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=3443129

Democratically, one should never set aside constitutional checks on executive power lightly. Our parliamentary system operates the way it does for very good reason, namely to ensure the government has considerable freedom to act, within the constraints set by, and subject to the continued expression of confidence of MLAs representing a majority of the province’s ridings.

As a further constraint, the Premier and cabinet must act to govern the province in a manner consistent with the laws laid out by the legislature. While a single party generally governs (Canada having very little experience with true coalitional government in which two or more parties have a role in cabinet) all parties have an opportunity to scrutinize and criticize proposed changes to legislation, and vote on matters of confidence.

The result is that power is at once assigned, legitimized, and constrained, with the government ultimately accountable to the people through their representatives. Bill 7 upends that relationship. Essentially, Bill 7 converts cabinet into the legislature on the issues it touches. As far as I can tell every single NDP MLA has some cabinet or caucus responsibility. That means just about every MLA on the government side of the legislature has some way to influence decisions taken under Bill 7 powers.

In contrast, Greens and Conservatives will have no access to scrutinize proposed changes passed via cabinet directive however, and such changes can be adopted without the multiple readings and public scrutiny built into the legislative process. The Conservatives are understandably furious with this, and the Greens are asking more pointed questions as well.

This runs the risk of enabling bad decisions, as there are fewer perspectives offered on decisions, and less opportunity for public scrutiny and feedback. It also creates the risk of government amending the rules on the fly to suit narrow needs, without sufficient consideration of larger consequences. Every government makes mistakes, and the good ones learn from the criticism when they do err. Indeed, the BC NDP has reversed course on a number of high profile decisions in the last few years, from the Royal BC Museum, to decriminalization, to involuntary care. While your mileage may vary on the reversals, it’s clear the government learned something from feedback on its proposals.

The fact that decisions under Bill 7 need not be submitted for legislative ratification deepens the risks of mistake, and makes it less likely they’ll be caught in the proposal stage, and more likely they’ll have real world consequences that the government will be accountable for.

The lack of legislative ratification also raises the prospect of future regulatory nightmares as actors must sort out whether the law or a cabinet directive holds on any given issue.

Strategically, it strikes me as a mistake as well. The fact is, Canada’s parliamentary system is incredibly nimble when compared with the American presidential system. The fusion of legislative and executive power ensures that, so long as confidence is maintained, when the situation calls for it, government can move business through the legislature in weeks or even days. Accordingly, a better strategy, in my view, would be to showcase the value of Canadian parliamentary democracy. Show, don't tell, why our system is so effective! Use the legislature to show the government is serving the needs of British Columbians.

Narrowing the bill’s scope would help draw a clear line between the urgent stop-gap actions that require expedited approval process, and the longer term process of reform that ought to proceed at a considered pace. Democracy is at times deliberately slow, for good reason. Integrating provincial economies, to choose just one example, is a complex and laborious process involving changes to the very way we regulate our economy. That is not something best done quickly via cabinet fiat.

There is even clear partisan bonus for the NDP in using the legislature for such changes. A move to centralize decision-making power that invites comparisons to Trump’s executive overreach, even if overstated, hands the BC Conservatives a lifeline at a time their caucus is badly fractured. Whatever their differences, the BC Conservatives and the former Conservatives turned independents can rally against sidelining the legislature in favour of government by NDP cabinet. It hands them another proof point in the case that the NDP in general and Premier Eby in particular is more interested in using power than being accountable to the people for its use.

In contrast, the regular passage of measures countering the US threat offers an endless number of hazards for those same Conservatives, as the caucus has already fractured on a motion condemning US tariffs and calling for a unified Canadian response. Every change intended to fight the US threat threatens to reexpose and deepen that divide between conservatives.

As John Horgan often demonstrated, good governance includes knowing how to pivot from mistakes, and learn from them. Accordingly the NDP government would be well advised to amend the legislation, and rediscover the value of the legislative process as they do.