Clarifying the Caretaker Convention

Clarifying the Caretaker Convention

by Philippe Lagassé

What is the caretaker convention? When does a period of caretaker government begin? When does it end?

These questions should be pretty simple to answer. Shortly after the federal election began, the Privy Council Office (PCO) released Canada’s caretaker guidelines. They’re right here for all to read.

Regardless, the past weeks have seen commentators distort and misinterpret the convention. In the interest of kindness, let’s chalk the errors up to overheated rhetoric or carelessness. But to discourage further confusion, let’s also reiterate what the guidelines say and mean.

Ministerial responsibility, the keystone of Canada’s system of responsible government, does not dissipate during the caretaker period.

The caretaker convention comes into force in two situations: a general election or a transition to a new ministry (i.e. the Cabinet of ministers headed by the prime minister) during a same Parliament. In the first case, the caretaker period begins after the prime minister requests and is granted a dissolution of Parliament by the Governor General. In the second case, the caretaker period begins when the outgoing prime minister announces his or her resignation and a successor is commissioned to form a ministry by the Governor General.

In both cases, the incumbent ministry remains in place. The existing prime minister and Cabinet retain their full legal authority within the executive. This ensures that there are ministers to take responsibility for the affairs of government and to make decisions that only ministers are legally or constitutionally empowered to make. Equally important, it guarantees that there are ministers in place to govern during crises and emergencies that might arise during an election or transition.

Under the caretaker convention, however, ministers should be quite guarded when exercising their authority. A caretaker ministry, the PCO guidelines state, “should restrict itself – in matters of policy, expenditure and appointments – to activity that is:

(a) routine, or

(b) non-controversial, or

(c) urgent and in the public interest, or

(d) reversible by a new government without undue cost or disruption, or

(e) agreed to by opposition parties (in those cases where consultation is appropriate).”

The words chosen by PCO are important. A caretaker ministry should restrict itself. The agreement of opposition parties is to be sought where appropriate. These aren’t weasel words. They reflect the actual meaning and operation of the convention. The caretaker convention is ultimately grounded in a principle of restraint, not a prohibition of action. It is a convention that relies on prudential judgement rather than absolute constraints.

Consultations with the opposition highlight this point. When the government must make a controversial but not easily reversible decision, the principle of restraint encourages ministers seek the opposition’s agreement. Were the government contemplating a significant expeditionary military deployment during an election, for instance, the prime minister would be expected to discuss the mission with opposition leaders. Yet this does not necessarily give opposition leaders a veto. A prime minister may judge that the action is vital to the national interest and proceed in spite of opposition misgivings. Moreover, the need to consult with the opposition is arguably tied to the reversibility of a decision. The easier a decision can be reversed by a different ministry, the less need to consult, and vice versa.

In making these determinations, ministers will be assisted by their deputies, and the prime minister by the Clerk of the Privy Council. These officials will remind ministers of the norms that surround the caretaker convention. But these senior bureaucrats do not, and cannot, supplant ministers. Ministerial responsibility, the keystone of Canada’s system of responsible government, does not dissipate during the caretaker period.

Contrary to what commentators have implied, therefore, the caretaker period is not some sort of interregnum, where the executive is effectively controlled by civil servants and ministers simply rubber stamp routine business. Nor does the principle of restraint eliminate ministerial discretion or require a ministry to seek the opposition’s consent for any and all decisions.

This leaves the last and most difficult question: when does the caretaker period end? The guidelines are vague on this issue —perhaps even cagey. According to PCO, the period “ends when a new government is sworn in, or when an election result returning an incumbent government is clear.” The first condition is fairly simple. As soon as a new Cabinet has been formed and sworn, the caretaker convention ceases to apply. The second condition is trickier. If an incumbent prime minister’s party wins a majority of seats on election night, few would deny that the caretaker period is over. But it might also mean that the caretaker period ends when an the incumbent ministry’s party wins a plurality of seats. As Paul Wells noted this week, there are degrees of plurality; a large minority might be treated like a slim majority. Hence, to paraphrase David E. Smith, the second condition may be less a matter of counting than of weighing. 

Interestingly, the guidelines leave out a notable word when discussing the end of the caretaker period: confidence. While it might be argued that the caretaker period should only end when a ministry demonstrates that it holds the confidence of the House of Commons, the guidelines do not go this far. Until the guidelines are changed, it appears that a caretaker period can end well before the House formally expresses confidence in the government.

This piece was originally published by the Policy Options blog. Read the full version here.

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