Canadian Government Executive - Volume 23 - Issue 09

30 / Canadian Government Executive // December 2017 The Last Word Lori Turnbull P rime Minister Justin Trudeau has, on many occasions, expressed his commitment to open and accountable gov- ernment. He was the first Canadian Prime Minister to give the public access to ministerial mandate letters. He also released Open and Accountable Government, a document that “sets out core principles regarding the roles and responsibilities of Min- isters in Canada’s system of responsible government.” Ostensibly, it is a document for Ministers to rely on for guidance as they grow in their roles, manage their portfolios, arrange their personal and professional affairs to avoid conflicts of interest, work together to carry out the government’s agenda, and remain accountable to Par- liament. The document explains the meaning and significance of responsible government and ministerial responsibility, both in an individual and a collective sense, and offers clarity on the respec- tive roles of political staff and the public service. Open and Accountable Government advances openness and transparency to the extent that it clarifies and makes public both the Prime Minister’s expectations of ministers as well as his un- derstanding of how authority and responsibility are allocated in Canada’s Westminster system. However, Canada needs to go a step further to keep pace with other Westminster countries: we need a cabinet manual. The UK, New Zealand, and various other parliamentary sys- tems have them. Essentially, a cabinet manual is a document that sets out, in writing, the rules, expectations, and conventions that together make up the rulebook for how a political system is gov- erned. Things like the roles, responsibilities, and powers of the Governor General and the Prime Minister, the mode of decision- making taken by cabinet, the role of the public service, the con- duct of governments and other entities during writ periods, and the conditions surrounding the summoning, prorogation, and dissolution of Parliament are some of the things that might be included in a Canadian cabinet manual. These documents are useful particularly in countries like Can- ada where the constitution is, in part, unwritten. We call these unwritten rules “conventions.” They are indispensible to the co- herence and functionality of the constitution but, since they are not enumerated in writing, they are binding in a political but not a legal sense. We cannot rely on the courts to enforce conventions (the courts have said this themselves); it is up to political actors to respect and fulfill their requirements and up to us to pressure them to do so. Our reliance on constitutional conventions puts the integrity of our parliamentary democracy in a somewhat precarious posi- tion, as the constitutional rules that make us a democracy, such as responsible government, ministerial responsibility, and the confidence convention, exist purely as conventions rather than as legally enforceable rules. The effectiveness and enforceability of conventions requires a clear consensus on what these rules mean and require; such a consensus is difficult to generate when nothing is written down. Political actors disagree with one another about what the conventions require, often for strategic reasons; consti- tutional scholars are frequently divided as well. Recall in 2008 the constitutional crisis that developed around Prime Minister Harp- er’s controversial request for the prorogation of the House of Com- mons in anticipation of a vote of no confidence in his minority gov- ernment: there was little to no consensus on what the rules meant and whether the Governor General had the discretionary power to say no. People are still arguing about that case. A cabinet manual would bring clarity to these situations by spelling out the practicalities of what the rules require from polit- ical actors. This would strengthen the conventions by helping to create a consensus around what they mean, which would help to put pressure on political actors to follow the rules. While the cabi- net manual would not become part of the written constitution, it would provide support to the elements of the constitution that are unwritten and are of fundamental importance to democracy in Canada. This is the link between transparency and account- ability: if the rules are clear and transparent, the political cost of breaking them is much higher. If Canada were to adopt a cabinet manual in the near future, much of the text from Open and Accountable Government could be copied and pasted into it. One might ask why we need to go the extra step to a cabinet manual if we already have a document that walks and talks like one. Fair point. But an important difference is that the Trudeau government’s document is just that: a message from the Prime Minister to his Ministers. It is transparent, but its application is limited to the duration of the government and, if the next Prime Minister doesn’t write one, we have no recourse. We need constitutional guidance and clarity that transcends the lifespan of any particular government. The Clerk of the Privy Council must hold the pen on the document, as the Cabinet Sec- retary did in the UK, to ensure its independence, objectivity, and survival. This is a very achievable goal and a necessary one in order for our government to catch up to international standards on openness and transparency in parliamentary systems. Reference: 1. Aucoin, Peter, Mark D Jarvis and Lori Turnbull. 2011. Democratizing the constitution: reforming responsible government. Toronto Ontario: Edmond Montgomery Press. L ori T urnbull is an associate professor of political science at Dalhousie University and fellow at the Public Policy Forum. Why Canada needs a cabinet manual A cabinet manual would bring clarity to these situations by spelling out the practicalities of what the rules require from political actors.