Guidelines on the Caretaker Convention


Former Clerk of the Privy Council Mel Cappe wrote an introductory piece The Caretaker Convention in Canada arguing that the Privy Council Office should release its official guidelines on the caretaker convention that place limitations on the government’s authority during elections, and that the guidelines should be updated as needed. Mr. Cappe presented his report at a workshop hosted by the Asper Centre for Constitutional Rights in February 2011.

As Nick MacDonald and I explained in a column in the Hill Times from April 4 (and as we examine in even greater detail in an upcoming article!), the caretaker convention means that from the issuing of the writs of election to the appointment of the next government, the current government ought not to exercise the full extent of its legal powers by declining to take on any major spending that Parliament had not already approved before the writs, and by voluntarily limiting the Crown prerogative on major appointments. The caretaker convention exists in the absence of any formalized, legal limitations on the government’s power during the writ period. When Parliament is not in session, the House of Commons cannot fulfill its core function of  holding the government to account for its expenditures; therefore, in order to adhere the principle of responsible government as closely as possible, the government must constrain itself by convention. While the caretaker convention is in effect, the government carries out only routine spending and appointments necessary for the basic functioning of the country.

After reading Mel Cappe’s article, I submitted an ATIP request to the Privy Council Office for this supposedly “secret” document and received a complete and non-redacted copy in the mail the following week. The Guidelines On The Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election (see Documents tab) consist of 11 pages and introduces the caretaker convention before, as the title suggests, issuing more specific “guidelines” (in fact, directives or instructions) to ministers, secretaries of state, exempt staff (political staffers), and public servants. Most of these directives serve as common-sense reminders to separate government and partisan activity.

The Guidelines summarize the caretaker convention: “[D]uring an election, a government 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 the Opposition (in those cases where consultation is appropriate).”

During the election, Nick and I had identified at least one instance where the government acted in accordance with these Guidelines. On Tuesday, April 12, 2011, the Globe and Mail reported that Minister Cannon had consulted with the Opposition on the Libyan matter before deciding to travel abroad. These international meetings pertaining to Canada’s participation in the NATO mission in Libya required the attendance of a minister of the crown and were both “urgent and in the public interest” and were “agreed to by the Opposition”. The government thus satisfied the main criteria of the Guidelines (as quoted in the previous paragraph).

I concur with Mel Cappe’s main conclusions: that the government should officially make public the Guidelines in order to better explain to the public the decisions made during writ periods. Unfortunately, our column in the Hill Times in which we wrote the official title of the “secret” document didn’t garner much attention, and few scholars have so far taken advantage of the availability of these Guidelines. I hope that this post and the link to the document will contribute meaningfully to further debate and discussion.

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