Newfoundland and Labrador’s Caretaker Guidelines from 2019

A few weeks ago, I received a report from one of my readers that some departments of the government of Newfoundland and Labrador have decided not to answer questions from journalists on the grounds that the Caretaker Convention prevents them from doing so. That is false. In fact, the Executive Council Office of Newfoundland and Labrador created some guidelines on the caretaker convention under the previous ministry of Dwight Ball in 2019 entitled Guidelines on the Conduct of Public Servants During An Election Period. They say the opposite of what these civil servants have claimed:

“Requests from Media:

Communications staff will not proactively seek media coverage during the election period and should not initiate contact with media. Media requests will, as always, be addressed promptly. Requests for information will be limited to technical and factual information and, if possible, provided not for specific attribution, i.e., be attributed to ‘spokesperson for Department of …'”  [1]

These guidelines clearly say that departments will always respond to requests promptly; “will” is obligatory, like “must”. So if departments refuse to respond to media requests for technical and factual information, then they are actively thwarting the Executive Council Office’s guidelines and are applying the caretaker convention over-zealously and incorrectly.  And even in the absence of these Guidelines, nothing would prevent departments from responding to request for information, which are, by definition, normal and routine business.

The Caretaker Convention is not some catch-all excuse for doing nothing, withholding information, and undermining journalism. If anything, the accountability function of journalism becomes more vital during an election when the assembly does not exist and MHAs therefore cannot hold the Premier and cabinet to account. 

Under our system of government, the Governor ensures that there is always a ministry in office. While MHAs cease to be MHAs upon the dissolution of the assembly, cabinet ministers continue serving as Executive Councillors and cabinet ministers during the writ. The caretaker convention is a way of dealing with that state of affairs based on the principles of Responsible Government.  

At its core, the caretaker convention means simply that the incumbent government should restrict itself to routine and necessary business during the writ (and, if voters have elected a minority parliament, up until a government demonstrates that it holds the confidence of the assembly). It also means that the incumbent government should not undertake any controversial or irreversible decisions that would bind a potential successor government. This rationale flows from the simple facts that:

1. the legislative assembly does not exist during the writ and therefore obviously cannot hold the executive to account, and;

2. that the results of the election, or the first vote of confidence on the Address-in-Reply to the Speech from the Throne or a supply bill, might require the Lieutenant Governor to appoint a new government which wants to pursue different policies.  

For instance, a government should probably not sign a major contract during an election, especially if it relates to an issue that has become contentious during the campaign. But a government should during an election continue to make routine and necessary announcements, such as on public health measures, road closures, anything about government services, etc., and continue with routine hiring and all other operations, such as public works, because any government would need to carry out these basic functions for the public good. These things always need to be done. 

Two contrasting examples from the federal level show where governments have and have not abided by the caretaker convention. In the election of 1979-1980, the Clark government decided not to finalise a contract to procure the F-18 Hornet; Clark lost, and the second government of Pierre Trudeau eventually did decide to pursue the deal — but the point is that the Clark government made that extra consideration by the Trudeau government possible. If the Conservatives had won, the Clark government itself would have inked the contract, too, with full accountability to the Commons and Senate. In contrast, Campbell decided during the election campaign in 1993 to sign contracts for privatising terminals 1 and 2 of Pearson International Airport, a significant policy decision which would probably not be done today during the writ and really ought not be done under the caretaker convention. Basically, those kinds of important big, non-routine decisions which can be delayed until after the election should be delayed until after the election. But routine matters must continue. Unfortunately, the civil service of Newfoundland and Labrador does not seem to grasp that practical necessity.

An Analogy on Caretaker Hypercorrection

In sociolinguistics, hypercorrection refers to a type of over-compensation of speech or writing where someone will mistakenly insist upon using an erroneous grammatical form or pronunciation by a false analogy to a correct or prestigious form. They think that they’re writing correctly, or sounding fancy and smart, when, ironically, they are not and succeeded only in revealing their own ignorance.

A common example amongst English-speakers relates to object pronouns vs subject pronouns. Some half-educated elementary school teacher drummed into your head that you should always say “I” instead of “me”, when, in fact, you should say “I” as a subject pronoun and still use “me” as an object pronoun. The same unimaginative bean-counting teachers also insisted that you must never begin a sentence with a conjunction, as if this question of style spring from an objective rule of grammar. The hyper-correct attempting to sound educated would misapply the grammatical rule and gloss over the distinction between object and subject and say, “They invited my friend and I to dinner”, while the merely correct would say “my friend and me”, because that subordinate clause acting as a direct object calls for an object pronoun. Since linguists are all descriptivists these days, they could never bring themselves to call that construction incorrect and wrong, but it is. What’s the point of maintaining separate subject and object pronouns if you’re not going to differentiate between them in speech or writing? At that rate, we might as well eliminate one or the other.

Something akin to hypercorrection has taken hold of the civil services in various provinces in Canada over the last five years with respect to the Caretaker Convention due to a mixture of extreme risk aversion and an abject misunderstanding of the rationale underpinning the Caretaker Convention itself. And as with hypercorrection in language, this hypercorrection in misapplying the Caretaker Convention also stems from ignorance and miseducation and results in an indiscriminate, over-zealous, and false application of this principle. Over-Zealous Caretakers in the civil service think that they are doing good and acting professionally; in fact, they are acting contrary to the public interest because they do not understand the purpose of the Caretaker Convention and when governments should and should not invoke it. They replace sound judgement and weighing each case on its merits with an all-encompassing false rectitude that causes the operation and machinery of government to grind to a halt.

Caretaker Hypercorrection Takes Hold in 2019 and 2021

In 2019, Lyle Skinner and I identified some examples of Caretaker Hypercorrection in Newfoundland and Labrador.

Two years ago, CBC News reported that the policies contained in the caretaker guidelines held up several key construction contracts already allocated funding and approved at the start of the province’s short construction season.[2] Percy Farwell, the Mayor of Gander, told CBC News that the early unscheduled election this spring “forced municipalities to delay the release of tenders” for public works where municipalities and the provinces share costs. This unwarranted delay ate into the construction season, very short in Newfoundland & Labrador as compared to, say, southwestern Ontario and Vancouver Island. This delay on the part of the provincial government should never have happened, not even under these caretaker guidelines. Re-paving roads certainly qualifies as a routine and necessary expenditure – that’s why we called it “construction season” – and there is no reason why the Caretaker Convention should prevent public works already paid for and approved from starting construction. The Guidelines say that “During the caretaker period, new, non-routine tenders should not be initiated.” But these projects to re-pave roads qualify as old and very routine indeed. If the provincial government invoked the Caretaker Convention in order to prevent routine summer road construction from starting in May, then either the Ball Ministry itself or the civil service of Newfoundland & Labrador applied these Guidelines over-zealously and wasted an entire construction season.

And in 2021, the same phenomenon has reared its ugly head once more. This over-zealous and incorrect application of the Caretaker Convention has become especially inconvenient and damaging in 2021 because of this unlawfully long writ, which stretched from 15 January to 25 March, and will not end until either the results of the election make clear that one party has won a majority, or until a new minority House of Assembly meets and expresses its confidence in a government. Elections Newfoundland and Labrador announced that it will have finished counting the special ballots on Saturday, 27 March 2021 and announce the results at noon that day.[3]

CBC News reported on the latest round of Caretaker Hypercorrection in mid-March 2021.[4] In the video interview between Here & Now’s Carolyn Strokes and Chris O’Neill-Yates, O’Neil-Yates relies that the civil service has obstructed routine hiring of social workers and contractors to plow and salt the roads – matters which are unquestionably routine and necessary and which must always continue, election or not. (O’Neill-Yates’s pronunciation of Michael Pal’s surname as /pʊl/ instead of /pal/ or /pæl/ took me aback, however).

In addition, Craig Pollett, the CEO of Municipalities Newfoundland and Labrador, has said that the civil service has obstructed approved capital works from starting. Pollett also contrasted federal and provincial guidelines on caretaker government in his interview with Here & Now, noting that the Privy Council Office has published its Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff, and Civil Servants During an Election, which clearly state that routine matters continue unabated during the writ. He said, “We don’t have that clarity here [in Newfoundland and Labrador.]” But, in reality, they do. In 2019, the Executive Council Office circulated its Guidelines on caretaker government, and the Clerk of the Executive Council at the time, Elizabeth Day, circulated this document to civil servants via e-mail. But it’s not Pollett’s fault that he didn’t know about this document. So far, CBC News has failed to mention these provincial Guidelines as well, even after I sent them directly to one of their prominent journalists in Newfoundland and Labrador well before these segments aired and were published on 14 and 18 March. Ideally, the Executive Council Office would have promoted this document proactively on its own website and briefed journalists on it. But the Executive Council Office did release the document under its Access to Information and Protection of Privacy Act in 2019, and you can at least download it from the link at the top of this blogpost and read it for yourself.

Barry Manuel, the Mayor of Grand Falls-Windsor, has also spoken out against this over-zealous Caretaker Hypercorrection and the civil service’s decision to put routine capital works on hold during this ridiculously long writ. Manuel summed up the dilemma aptly, saying “For government, it means caretaker mode is kind of a stall mode, when to me, caretaker mode would imply that it’s business as usual – but that’s not necessarily the case.”[5] Manuel is absolutely right. If I can re-state his comment in an unnecessarily elaborate analogy, a caretaker government should operate on something akin to Newton’s First Law of Motion, where the ship of state continues on course in a straight line at a steady speed, and therefore carries out all routine and necessary functions as normal. Only a change in government would constitute another force acting upon the ship and prompt a course correction. Instead, Premier Dr. Furey has allowed his civil service deckhands to run the ship of state aground on rocky shoals, like the Ever Given currently blocking the Suez Canal. For its part, the Department of Transportation and Infrastructure has denied that the charges levelled by Pollett and Manuel, insisting that “the tendering for previously-announced projects has not stopped.”  

The first story from 14 March contains this extraordinary statement by Siobhan Coady, the Finance Minister of Newfoundland and Labrador, that anyone dissatisfied about the fact that the civil service has unilaterally decided to hold up funding for capital projects and routine hiring and routine questions form journalists in direct violation of the Executive Council Office’s Guidelines on the Caretaker Convention should take that complaint directly to the Clerk of the Executive Council – as if Ministers of the Crown had no say in how the Government of Newfoundland and Labrador is run.

“I would urge anyone that has any concerns to take it to the department that they would normally deal with and that can be discussed with the Clerk of the Executive Council and with [the] Cabinet Secretariat to see if it meets the spirit and intent of both the Interpretation Act and the Caretaker Convention.”

This statement unintentionally makes clear that the over-zealous caretakers grinding the machinery of government to a halt are civil servants acting under the authority of the Clerk of the Executive Council and that Ministers of the Crown have either ceded or lost control over all this. This also has nothing to do with the Interpretation Act. Furthermore, Coady’s statement suggests that she is also unaware of the existence of the Executive Council Office’s Guidelines from 2019. Perhaps some intrepid journalists in St. John’s could ask Premier Furey why he has allowed Gary Norris, the Clerk of the Executive Council,[6] to let the civil service run roughshod over its own Guidelines and prevent routine and non-controversial capital projects in municipalities from getting done during the short summer construction season. The proper remedy is that the Premier order the Clerk of the Executive Council to enforce the Guidelines properly and that the Clerk of the Executive Council make this message very clear to all the province’s civil servants that that they cannot refuse to answer questions from journalists, nor refuse conduct routine hiring, nor refuse to release funds for routine capital works under the guise of the Caretaker Convention.

Similar Posts:

• “There’s Nothing Strategic About This:” How Dwight Ball’s “New Government” Distorts the Caretaker Convention (August 2019)
• The Over-Zealous Caretakers of the 2019 Election (October 2019)
• The Caretaker Convention and the Appointment of Supreme Court Justices During Elections: 2015 vs 2019 (September 2019)
• The Caretaker Convention in 2019 (September 2019)
• Manitoba’s Early Election Expands the Caretaker Convention (August 2019)
• There’s Nothing Strategic About This: How Dwight Ball’s ‘New Government’ Distorted the Caretaker Convention (August 2019)
• The Doctrine of Necessity in Newfoundland and Labrador’s Omnishambles Election (February 2021)
• Newfoundland and Labrador’s Omnishambles Election of 2021 Continues (February 2021)
• Electoral Disaster Strikes the Rock: Newfoundland and Labrador’s Crazy COVID Election (February 2021)
• Newfoundland and Labrador Must By Law Hold An Early Election By 2021 (February 2020)
• Newfoundland and Labrador Will Also Go for an Early Election in May 2019 (April 2019)

Notes

[1] Newfoundland and Labrador, Executive Council Office, Guidelines on the Conduct of the Public Service During An Election Period (St. John’s: Cabinet Secretariat, Spring 2019), 14.

[2] CBC News, “Here’s How the N.L. Election Could Cause a Construction Backlog: Municipalities Can’t Go to Tender While Election Is Underway, Even If Work Was Approved Months Ago,” 14 May 2019.

[3] CBC News, “N.L. Election Results To Be Released Saturday at Noon N.T.: CBC Will Have Live Coverage,” 23 March 2021.

[4] CBC News, “Concerns Mount About Caretaker Government and Extended Election Campaign,” 14 March 2021; Conor McCann, “Municipalities Say Capital Projects in Limbo Because of Caretaker Government,” CBC News, 18 March 2021.

[5] Conor McCann, “Municipalities Say Capital Projects in Limbo Because of Caretaker Government,” CBC News, 18 March 2021.

[6] Newfoundland and Labrador, Executive Council Office, “News Release: Premier Furey Announces Senior Public Service Appointment,” 25 August 2020.