By Leonid Sirota, November 27, 2023
Economists and others who study government for a living are interested in, and sometimes quite concerned about, its size. Lawyers, curiously, not so much. With some exceptions, the scholars of constitutional and administrative law, as well as legal practitioners and judges, tend either to take big government for granted, asserting its necessity in modern life, or simply to ignore it.
In my view, this is a mistake. Government size bears directly on key principles with which public lawyers are concerned, including the rule of law (as F.A. Hayek showed in The Road to Serfdom). Here, I argue that government accountability is another principle about which we cannot think intelligently without taking government size into consideration. It is more difficult to keep a big government accountable than a small one—and perhaps impossible to do so through political means.
How much does the state weigh?
When small-government types (of whom, full disclosure, I am one) talk about government size, they often refer to government spending as a percentage of a jurisdiction’s economic output. This is indeed worth keeping in mind, if only because this measure clearly shows the prodigious growth of government over the last century or so. According to IMF data, before the World War I, Canadian governments spent only about 6% of GDP; in the 1950s, 15%. By the 2010s, it was 40-45%; in 2021, 46% of GDP. And that is not all. A decade ago, MLI pointed out that conventional public spending measures significantly understate the government’s impact on the economy. Adding “tax expenditures” (i.e., spending in the form of tax credits) and the impact of regulations would increase the size of government by another 20 percentage points.
But when thinking about government accountability, these figures are not all that interesting by themselves. If the government simply sent money to people pursuant to clear statutory direction, keeping it accountable would be simple enough. Other measures of government size are more telling.
One is the number of people and entities who make up “government”, and, more specifically, the executive branch. The fact that Canada is a federation and so has two levels of government in addition to municipalities and Aboriginal governments adds further complexity. But even what is nowadays, somewhat confusingly, called “the federal government” (i.e., the central one in Ottawa), is a big and complicated entity in its own right. It is headed by a prime minister and 38 other ministers. It consists of 207 “departments and agencies”, from Accessibility Standards Canada and the Bank of Canada Museum to the Windsor-Detroit Bridge Authority and the Youth Secretariat.
And then there are the provinces. Ontario, for example, has 29 ministries (in addition to the Cabinet Office, which is effectively a 30th one) and “over 170” provincial agencies. (One wonders whether the Ministry of Red Tape reduction lost count before it got around to reducing very much). If you are a public-spirited Ontarian who decides to read up on what each minister governing you gets up to for half an hour every week (which isn’t likely to be enough to stay fully informed about all of them), you will have close to a full-time job on your hands—and that’s before you’ve learned the first thing about nearly 400 agencies, not to mention the municipal government of your town or city.
These people and, of course, the 338 MPs, 105 Senators, and, depending on your province, several dozen provincial legislators, are not idle. The federal Parliament has been passing around 30 acts each year this century, sometimes rather more. But many of these amend multiple pre-existing laws, sometimes dozens of them, sometimes on closely related topics but sometimes not. Again, there are also the provinces to consider. Turning to Ontario once more, most years anywhere between 20 and 40 acts of the Legislative Assembly are passed, and many of them amend or enact large numbers of other laws. A particularly egregious example, which I’ve written about on my blog Double Aspect, was Ontario’s Protecting What Matters Most Act (Budget Measures), 2019, whose 61 schedules amended, by the count of the Canadian Legal Information Institute, no fewer than 184 pieces of legislation, many of them highly significant despite having nothing to do with the budget or indeed, arguably, with what matters most to anyone in their right mind.
And all that, in turn, is not much compared to the quantity of regulations; that is, rules enacted by the executive branch pursuant to authority granted by an act of Parliament or a provincial legislature. Professor Lorne Neudorf, a rare legal scholar who has taken interest in at least this aspect of contemporary big government, has found that, at the federal level in Canada, “[b]y volume, delegated legislation [i.e., regulations] is made at a rate of nearly 5-to-1 as compared to primary legislation [i.e., Acts of Parliament].” The expansion of delegated legislation, not only in terms of quantity but also, even more importantly, its relative significance, means that not only has the size of government has grown over the last century, but its shape, as it were, has also changed. Governance happens less in Parliament or the provincial legislative assemblies, where laws are passed and ministers are made to answer the opposition’s questions, and more in the executive branch, whether in the Prime Minister’s office, around the cabinet table, or in the hundreds of government agencies, where the Parliamentary spotlight does not reach. To quote Professor Neudorf again,
Cloaked in secrecy, the executive lawmaking process allows lawmakers to ignore comments received on draft regulations… In the realm of executive lawmaking, there is no public debate, and no formal way of introducing amendments to proposed laws like in Parliament. To make matters worse, the media pays virtually no attention to the enactment of new delegated legislation, which is simply promulgated as a fait accompli.
One final point on the size and shape of government: these are, largely, a matter of broad consensus in Canada and indeed in other democracies. Of course, there are differences of opinion between political parties, especially regarding public spending and taxation. But, despite the significance they take on at election time, these differences are, generally speaking, fairly narrow. No mainstream political party advocates, even as a distant goal, a return to a government similar to that which existed before 1960, let alone 1914, never mind a Nozickian minimal state. Parties of the left and right each endorse various forms of government regulation and intervention. Hayek was right to dedicate The Road to Serfdom “to socialists in all parties”.
Does this matter?
All this is worth dwelling on at length because both legal theory and legal doctrine tend, for the most part, to ignore the size and shape of contemporary government. This results in scholarship and jurisprudence that are unmoored from reality and complacent in the face of the dangers that big government poses to accountability (the focus of this paper), as well as other fundamental principles such as the rule of law.
On the theory front, one school of thought, the supporters of “political constitutionalism”, argue that governments should primarily, or even solely, be held accountable through parliamentary institutions and elections. They criticize judicial review of legislation and, to a greater or lesser extent, of administrative decisions too, because they see these forms of legal accountability as undermining democratic, or democratically-enabled, decision-making. While full-blown political constitutionalism is something of a niche view in the Canadian legal academy, it influences scholars who defend the growing recourse to the Canadian Charter’s so-called “notwithstanding clause” (section 33), which prevents the courts from remedying violations of most of our constitutional rights.
More influential, not only in academia but also in legal doctrine, especially until the Supreme Court’s judgment in Vavilov’s case in 2019, is the view that administrative decision-making is entitled to judicial deference, even insofar as it involves the interpretation of law, including the Charter. Justifications for this practice have shifted over the years. The one now accepted by the Supreme Court is that it is simply what Parliament and the legislatures must want, unless they clearly indicate otherwise—though even then, courts may ignore their preferences. In effect, this means that legal controls on the executive are relaxed in Canada, in comparison with fellow common law jurisdictions, such as the United Kingdom, where courts and academics alike generally reject judicial deference to administrative interpretations of law.
Nor is this the only way in which the courts abdicate from the scrutiny of government. As Professor Steven Penney has argued, they have interpreted some provisions of the Charter, such as its due process rights, restrictively, so as not to interfere with intrusive economic regulations. They have also abandoned the historically correct position that the Constitution grants Parliament and the provinces exclusive legislative powers (as, indeed, it says) in favour of overlapping areas of jurisdiction that make it more likely that constitutionally questionable legislation will be upheld.
We can see why the size and shape of government mean that these theories and doctrines are a problem by thinking about government as involving a set of agency relationships. That the government as a whole, and especially Parliament, is an agent of the electorate is a widely accepted idea. On a simple view of separation of powers, which holds that Parliament makes laws and the executive implements them, the executive branch is also Parliament’s agent. (Things are more complicated in reality, but we nevertheless need to hold on to at least some version of this view; at least, if we are not to concede that the prime minister or premiers are essentially elected dictators.) Government accountability, then, involves (at least) these two principal-agent relationships: between the voters and Parliament, and in turn between Parliament and the executive.
Yet it stands to reason that the more the agent does, the more its principal will find it difficult to monitor its multitudinous activities. The principal’s attention span and the resources (starting with time) it can expend on monitoring the agent are finite. As the agent’s activities multiply, the principal must dissipate its monitoring to the point where each receives very little scrutiny, abandon scrutinising some of these activities altogether, or some combination of the two. Moreover, political accountability, whether in Parliament or, especially, in election campaigns, is close to a zero-sum matter. Institutions and groups devoted to it—select committees, ombudsmen, special interest groups, and journalists—ultimately compete for an inelastic supply of Parliamentary time and voter attention. More often than not, success at turning Parliament’s or the public’s gaze on one government failure that calls for accountability has the side effect of other such failures flying under the radar.
This is true even if we assume away such things as the rational irrationality and ignorance of voters, as well as party discipline. In reality, these all get in the way of political principals monitoring their agents. Even if debates on some few defining issues in an electoral campaign or salient pieces of legislation capture the public’s attention, the work of a rotating cast of dozens of ministers and hundreds of agencies, the enactment of a hundred laws and amendment of several times as many over a parliamentary term, and the making of countless regulations cannot be meaningfully monitored by citizens, or indeed by legislators. Even in an idealised political world of perfect rationality and public-spiritedness, big government is bound to escape political scrutiny.
Federalism complicates matters further, because Canadian voters have two sets of agents to keep tabs on, their provincial and federal representatives. Understanding the respective responsibilities of these two sets of agents and keeping track of both is difficult enough if they do not try to muddy the waters, and if the courts do not let them do this. But the temptation to confuse voters by deflecting blame, or to take credit by legislating or spending outside of one’s jurisdiction is strong, and Canadian courts too often ignore the ways in which it undermines government accountability.
What is to be done?
The supporters of big government—which is to say the kind of government Canada has had since at least 1960 (and arguably well before then)—who also favour doctrines that emphasize political rather than legal forms of government accountability are left in a quandary. Although they do not recognise this, they are stranded on the horns of a trilemma. (Imagine a triceratops-shaped trilemma, and you will see that it is quite a serious predicament.) They desire a government to have three traits: to be accountable; to be subject to political rather than legal control; to be big. But of these three, no more than two can ever co-exist.
Political control combined with big government results, as described above, in an inevitable sacrifice of accountability. To be clear, I do not mean to condemn this position out of hand, although I do not share it. No political ideal is ever fully realised: not democracy, nor the rule of law, nor respect for human rights. Accountability is no different, and one can choose to have less of it for the sake of having more of something else. After all, if, or to the extent that, proponents of political constitutionalism and judicial deference have valid reasons for criticizing the courts, these critiques do not lose their power because the politics of big government does not live up to their expectations as to its capacity to deliver accountability.
Those who, however, aren’t prepared to accept the loss of accountability, while still valuing big government, can turn to the courts to make up the accountability deficit which government size creates. Courts allow citizens (possibly supported by public interest litigation groups) to challenge a government decision without the need to generate political consensus about both the merits of the challenger’s view and its sufficient importance to take up space on the community’s political agenda. This route can thus be open to more individuals and groups than the quest for political attention, especially those without the political clout to command the attention of voters or politicians on their own, or to offer favours to potential political allies.
In this way, the expansion of legal accountability sacrifices the primacy of politics to the preferences for improving accountability, while allowing the preservation of big government. To be clear, it need not denigrate political accountability and does not seek to do away with the existing avenues for it. It merely holds that something more is necessary to deal with big government. But for legal accountability to be effective, such Canadian legal doctrines as judicial deference to bureaucrats on questions of law, and the weakening of both Charter– and federalism-based constraints on government regulation must be rejected. In my view, the ouster of judicial enforcement of rights through the use of the notwithstanding clause should be rejected too.
As a matter of logic, there is also a third and final option. Instead of accountability having to be limited or the primacy of politics sacrificed, big government itself can be put on the chopping block. A government cut down to its pre-World War I size or, better yet, still smaller, could more plausibly be directed and held to account by political institutions and by the voters than the leviathan that has grown over the last century. At the extreme, government might conceivably be reduced to functions that would not be fit for legal accountability at all, such as foreign affairs and defence. But, even short of that, the fewer programmes it undertakes, the fewer people it employs, the less it relies on comparatively obscure regulations, the easier government is to monitor and to subject to public debate.
Some readers will be tempted to reject this third approach to reconciling government accountability and political constitutionalism. Fair enough. They may wonder whether unaccountable private power will replace imperfectly accountable public power, and while this will by no means always be the case—a policy of open borders, say, very much doesn’t involve the creation of a private immigration regulator—this concern is worth discussing at greater length than I have available to me here. My purpose, for now, is not to make the case for small government—that is obviously a much larger project. But sceptical readers should recognise that their preference for big government is neither the only option available nor free from trade-offs. Satisfying it makes it more difficult to ensure government accountability, and indeed impossible to reconcile a robust approach to accountability with political constitutionalism. The trade-offs in favour of big government might be worth making, but only if they are understood and acknowledged.
Leonid Sirota is a senior fellow at the Macdonald-Laurier Institute and teaches public law at the University of Reading in the United Kingdom.