The Supreme Court as a window on federalism (again)

So, the Supreme Court of Canada has ruled on the constitutional validity of the appointment of Mr. Justice Nadon.  In essence, the majority took the position that to be appointed to the Court from Quebec a person must be a current member of the Quebec Bar or a sitting judge in Quebec.  Marc Nadon was neither at the time of his appointment so he was deemed to be ineligible.

828928-marc-nadon

Source: Canadian Press Archive/ La Presse

In their decision the majority wrote that the legislation creating the Supreme Court requires that three judges be from Quebec (Section 6).  The go on to argue that: “The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.”

In an analysis of the Nadon decision University of Montreal law professor Jean Leclair goes a bit further and argues that: “Bref, une compétence technique en droit civil ne suffit pas pour bien représenter le Québec. La légitimité de la Cour suprême, déjà l’objet d’une démonisation au Québec, requiert du candidat qu’il puisse se réclamer d’une appartenance étroite et contemporaine à l’univers québécois.”

In a highly critical review of the decision, Andrew Coyne disagrees with the reasoning of the majority, but concludes that “If ever there were an argument for a more robust process of legislative review of such appointments, this is it”.

I agree.

But legislative review of appointments need not, and indeed should not, be limited to the House of Commons.  As I suggested a few weeks ago on this blog, I wrote “Had the Harper government been required to publicly and formally consult with the Quebec government, it is almost certain that the person nominated would not have been so controversial with the risk of undermining the legitimacy of future decisions by the Supreme Court of Canada.”

A fulsome discussion of the merits of a provincial role in nominations to the Supreme Court of Canada is unlikely in the near term.  But it is plausible to imagine a Liberal government in Ottawa and a Liberal government in Quebec City.  It is also plausible to imagine that a new federal government will want to improve on the current flawed process of naming judges to the highest court in the land.  In anticipation, best perhaps to read up on both the Meech Lake Accord and on the general matter of how we name judges to the Supreme Court of Canada.

 

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Behavioural Economics and Public Policy

reluctant-nudge-300x300

Source: CAD Soft Consulting

Behavioural economics is all the rage these days, particularly so when it comes to what it might mean for public policy. We repeatedly read that both UK Prime Minister David Cameron and the Obama White House are very much interested in the use of behavioural economic techniques as a tool of public policy.

But as is so often the case what we mean exactly by behavioural economics is not clear. The Financial Times recently ran an excellent primer – you can find it here.

Who sits on the Supreme Court as a window on the decline of federalism

Supreme Court of Canada building (Source: Creative Commons)

Supreme Court of Canada building (Source: Creative Commons)

Who should sit on the highest court in the land and by what process should these people be chosen?  For some, these may be somewhat esoteric questions.  Yet given the enormous power and influence of the courts, particularly in a country like Canada where the Charter of Rights and Freedoms leads to legal challenges of a wide range of government decisions, these who and how questions are actually very important.

Recently these questions were front and centre as the Supreme Court of Canada heard arguments on the constitutionality of the appointment of Marc Nadon to the same Supreme Court.  As Andrew Coyne and others have pointed out, the very fact that the Court has been asked to rule on the constitutional merits of the Nadon appointment is awkward, to say the least.

With one exception, I will leave it to others to debate the question of “who” and whether Marc Nadon is an appropriate choice.  Suffice to say that many were surprised by his appointment and he was not on the short list of those who handicap nominations to the Supreme Court.  The exception that I am interested in is the widely accepted idea that three judges on the highest court “should be from the province of Quebec”.  I put this characteristic in quotation marks because what it means is subject to interpretation.

The Supreme Court Act provides in Section 6 that “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”.  Why?  Much of the commentary on the controversy around the Nadon appointment emphasize the fact that at least part of the rationale for this section is that it is critical that the Supreme Court of Canada have expertise in the Quebec civil code which addresses “all of the basic provisions that govern life in society, namely the relationships among citizens and the relationships between people and property”, including for example, family and property law.

quebec flagHowever, I think there are other reasons why at least three of the judges must be from Quebec.  While it is not specified in legislation there is a very strong constitutional convention in Canada that, taken together, the nine judges of the Supreme Court of Canada should “represent” all of the “regions” of Canada.  I put quotation marks around the notions of representation and regions because there is some debate as to what these terms mean.  For the moment suffice to say that all would agree that when it comes to regional representation on the Supreme Court of Canada, Quebec is a region unto itself.  Moreover, in most of Canada and especially in Ontario where most of our pundits live and work, the view seems to be that when we say that a judge on the court represents a given province or region we are not saying that they are to be delegates and seek to defend and advance the interests of their province or region.  Rather, the convention provides for representation in a narrower sense.  We want judges from across Canada so that the Supreme Court has represented on it, the geographical diversity of Canada.  In Quebec, however, there are those who believe that the judges from Quebec should be able to defend the interests of Quebec, assuming that a province can be said to have a discernable and coherent “interest”.

However, all of this is preliminary to my main concern which is “how” judges are appointed.  Simply put these are decisions of the Prime MInister and the Minister of Justice.  Prime Minister Harper has introduced a slight innovation whereby after the decision has been made, but before it is finalized, the candidate appears before an ad hoc committee of the House of Commons and relatively benign questions are asked.  We learn relatively little.

More importantly, the process does little to address the role of justice of the high court as representatives of regions.  All we have is the assurance of the Prime MInister and the Minister of Justice that the candidate will be able to serve as an able representative of the region she or he is from.  Again, they are not asked to be delegates, only to enjoy a degree of legitimacy as someone who understands “their” region.  Alas, Mr. Justice Nadon has not been deemed an able or particularly legitimate representative of Quebec.  While much of the commentary has focused on his ability to understand and judge civil law cases, my concern is linked but broader.  For me, the legitimacy of the Supreme Court of Canada lies in the extent to which citizens believe that court judgements will be fair.  And in Canada, a country with real and often sharp disagreements over region and language and culture, this legitimacy is defined by more than sheer intellectual or legal competence.

If the Supreme Court of Canada rules that Mr. Justice Nadon’s appointment is, in fact, constitutional, that is not the same thing as saying that it will deemed legitimate.  At some point the Court, of which Mr. Nadon is a member, may well be asked to rule on a regionally or linguistically divisive issue.  The judgement may well not enjoy the support and legitimacy in Quebec, precisely because of the controversy surrounding the appointment of Justice Nadon.

Source: McCord Museum

Source: McCord Museum

It does not have to be this way.  In the not so distant past Canada was on the cusp of amending the procedure by which members of the Supreme Court of Canada are appointed.  Precisely to to reflect the regional and linguistic diversity of Canada, both the Meech Lake and Charlottetown accords included provisions to give provincial governments a role in appointments to the high court.  Had the Harper government been required to publicly and formally consult with the Quebec government, it is almost certain that the person nominated would not have been so controversial with the risk of undermining the legitimacy of future decisions by the Supreme Court of Canada.

Changes to the process of appointing judges to the Supreme Court of Canada do not require constitutional amendments.  A future Prime Minister could quite easily announce that she or he would formally and publicly consult with the provinces before making appointments to the Court.  Of course, this would reflect a different and older conception of what Canada is about.  But the prospect of a victory by the Parti Québécois in the next Quebec election is a reminder that Canada and its constitution are yes, about rights, but they are also about regional and linguistic diversity and the federalism instituted to reflect this reality.

Political perspectives in public health

For several years now I have been pondering the intersection between public health and political science and between public health and politics.  How, where and with what effect the two intersect is manifest in a number of dimensions, some scholarly, many decidedly practical and real (my earliest effort in this area was published in 2008).

One of the perennial debates in public health generally and health promotion in particular is the role of “individual” vs. “societal” changes in improving the health of populations.

The “individual” perspective on public health (let’s call it IPH for short), emphasizes the importance of each of us making small and not so small changes in how we live our lives as the key to improving our own health and, collectively, the health of the population overall.  As my University of Ottawa colleague Yoni Freedhoff recently put it “what we choose to do with our forks and our feet” has significant implications for our health.

The “societal” or “structural” perspective on public health (let’s call it

John Locke

John Locke
Source: Wikimedia Commons

SPH for short) argues first, that societal or structural changes are required to improve population health, and second, that absent these structural changes, it is difficult if not impossible for many people to make the individual changes required to improve their own health (e.g., the poor cannot eat well if they live and “food deserts” and do not have access to health food choices where they live).  There are various versions of SPH from those that emphasize changes to our built environment (e.g., how we design and build cities) all the way to those that argue that the structural changes required go much deeper and point to the design of the welfare state.

My working hypothesis is that there is a set of relationships between these different perspectives on what matters for public health and different ideological if not philosophical positions.  IPH clearly has it roots in traditional liberalism with an emphasis on the central importance of individual choices about the good life.  Conversely, an SPH perspective is linked to a more social democratic interpretation of what makes the world go ’round.

In contemporary politics the IPH perspective is by far the stronger of the two (or at least something that most governments can agree on) and gives rise to the bureaus, agencies and departments devoted to health promotion.  The SPH perspective is not completely absent but pops up more selectively (e.g., the largely ineffectual interest of the government of Tony Blair in health inequality; the WHO Commission the Social Determinants of Health – which itself has been accused of being excessively liberal in its orientations).

Krieger

Source: Oxford University Press USA

This is by no means a novel observation, at least in public health circles. Nor is it anything close to a complete account of the different perspectives in public health (for this you would be well served to read Nancy Krieger’s magisterial survey of public heath theory).

I draw attention to it because it would seem that there is a growing awareness in the broader population that health is more than health care (a truism among students of public health).  Yet, when a well-intentioned citizen or politician wishes to take the claim seriously, she or he is immediately confronted by quite different accounts of what it means to tackle public health using tools beyond the health system.  In other words, perennial debates inside public health are being moved into a broader arena.  This means that the usually polite disagreements between proponents of different flavours of both IPH and SPH accounts of what keeps up healthy risk being transformed into a more partisan, and therefore more heated and perhaps partisan discussion if not debate.

And this could be a good thing.

On the politics of cancer screening – a case of governance?

thOn a regular basis newspaper articles appear calling for more and less screening for various diseases, notably cancer.  Just this week I came across two on breast cancer screening.  One, in the New York Times, was sceptical of the merits of mass screening raising the very real risks associated with false positives.  On the argument that “overtreatment is typically more common than avoiding a cancer death” H. Gilbert Welch, professor of medicine at the Dartmouth Institute for Health Policy and Clinical Practice, calls for more research to develop a finer grained understanding of the risks and the benefits of breast cancer screening.  A second article in the Huffington Post took issue with the claims of Dr. Welch, making the case for continuing emphasis on screening. (For an excellent overview of the evidence on breast cancer screening – albeit arguing for less screenign – see here).

What I find most interesting about these debates is that governments try hard not to get directly involved.  In the spirit of medicine as a self-regulating profession, most governments offer citizens limited advice and we told to discuss our options with our doctor.  (There are some interesting exceptions when, for example, a provincial government (in this case Ontario) actively promotes breast cancer screening while refusing to pay for PSA tests except where a physician or nurse practitioner suspects prostate cancer. For an excellent primer on prostate cancer screening see here.)

Prostate_Cancer_ScreeningsOccasionally, a task force or advisory body will release new guidelines for screening and a spirited if not vociferous debate ensues as different groups weigh in arguing the new recommended guidelines are too lax or too strict.  In 2012, for example, the U.S. Preventive Service Task Force issued a new set guidelines for the screening of prostate cancer. The Task Force took a dim view of PSA tests which precipitated a very strong reaction from the American Urological Association.  And less than two years later Prostate Cancer Canada issued its own set of guidelines calling for more rather than less use of the controversial PSA test.  This underlines the fact that there are, in fact, a plethora of guidelines issue by different authoritative groups.  Sometimes they are similar, very often they differ in important ways, and occasionally they are contradictory.

What is the citizen/patient to make of all of this?  I am not sure.  But it seems to me that cancer screening is a potentially useful area for political scientists interested in governance, policy networks, and the general trend of authoritative rule making by entities other than elected governments.

Now the search begins for a good model of non-state governance that would contribute to the systematic study of health sector governance in general and, in particular, the politics of cancer screening.  Suggestions welcome.

Governance

“To write or even speak English is not a science but an art. There are no reliable words. Whoever writes English is involved in a struggle that never lets up even for a sentence. He is struggling against vagueness, against obscurity, against the lure of the decorative adjective, against the encroachment of Latin and Greek, and, above all, against the worn-out phrases and dead metaphors with which the language is cluttered up.”

George Orwell, The English People

Policy as Values

(This first appeared in the newsletter of the Institute for Science, Society and Policy at the University of Ottawa.)

Image

Long ago and far away I took a course in philosophy of the social sciences.  Surprisingly, this philosophy course involved a field trip and a very peculiar one indeed.  On campus there was a small office in a bit of commercial space that housed, if memory serves, Technocracy Inc.  The organisation was committed to advancing the cause of a rational and scientific approach to life in general and government in particular.

I have repeatedly encountered variations on this desire for a scientific approach to government, most recently in the blog post by my University of Ottawa colleague Scott Findlay provocatively entitled (at least for me) “Policy as Science”.  To summarize and oversimplify, he advocates a rational policy process that selects among candidate policies in a rational manner, using the scientific method.  My first inclination was to discount if not dismiss the argument by simply asserting that in real life things are not so simple and grumble about the hubris of scientists.

But the very fact that the desire for a rational approach to policy making is always present and, at first glance, quite seductive, demands a more fulsome response.  There are any number of possible objections:  much has been written on whether policy making is rational and many have argued that it is not rational and indeed cannot be so.  In fact, I have argued, as have many others, that policy making should not be reduced to rational problem solving.

salt But for the moment I want to focus on one aspect of the argument for a more rational or scientific approach to policy making.  To reduce policy making to problem solving, as Scott suggests, assumes that we can agree on the nature of the problem and on the desired outcome.  Let us consider each of these claims in turn.

Before there can be a policy choice there has to be agreement that there is a problem to be solved or at least one that government can do something about.  In effect then, the art of governing is to choose the problems that will be addressed and which are to be more or less ignored.  However, among the many challenges of governing is the simple fact that we do not always agree on the nature of the problem.  I observe that Canadians eat too much salt, which causes widespread high blood pressure.  Others say that there is no scientific consensus on the matter and scoff at the idea that there is a problem to be solved.  In effect, fighting over how to define the problem and the science underlying problems is often a big part of the policy process – witness the debates about climate change or drug addiction.

Assuming we can agree on the nature of the problem (or at least most of us can, at least for a time) according to Scott a rational policy process would see us choose the option that is most likely to achieve desired outcomes.  However, we are confronted by the reality that we are unlikely to agree on what is desirable.  Policymaking is never only about solving a problem.  It is addressing a problem in a way that is acceptable to at least some citizens some or most of the time.  It is making decisions that advance a broader overall agenda if not a broader philosophy. It is addressing public concerns in a politically prudential way.

To return to the case of dietary sodium, we have no way of demonstrating unequivocally whether what is required is social marketing, industry self-regulation or government regulation of the food industry.  And even if it could be shown that government regulation of the food industry is the optimal way to reduce the amount of salt in our diet, small-c conservative governments are unlikely to want to do so on broadly philosophical grounds.   Government regulation of food raises concerns about undue government influence in the lives of citizens.  The latter objection cannot be resolved with reference to science alone.  It is a normative claim and requires a different kind of reasoning altogether.

In effect, most of the truly interesting and non-trivial policy issues do not lend themselves to rational decision-making.  Why? Because they involve disagreements over values and such disagreements, as Hume reminded long ago, cannot be resolved with reference to science alone.