Extreme Risk Aversion: The Caretaker Convention in 2021


The Caretaker Array in Star Trek: Voyager

Prime Minister Trudeau advised Governor General Mary Simon to dissolve the 43rd Parliament of Canada and issue the writs of election on 15 August 2021. The Privy Council Office marked the occasion by releasing another edition of its Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election – naturally, in HTML alone, and using the same URL as the earlier editions from 2019 and 2015, now over-ridden and consigned to Internet oblivion. This document contains guidance on the Caretaker Convention.

At its core, the Caretaker Convention means simply that the incumbent government should restrict itself to routine and necessary business during the election and after an election if the results either not do yield a clear winner or if another party has won a majority. 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 House of Commons does not exist during the writ and therefore obviously cannot hold the Prime Minister and Cabinet 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, might require the Governor General to appoint a new Prime Minister who will 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 or travel advisories, or in responding to natural disasters and other emergencies. Matters of state like Canadian participation in international conference and summits in which any government of any political party would participate should also continue. 

Ideally, the Prime Minister and Cabinet and the civil service should regard the Caretaker Convention as a political equivalent to Newton’s First Law of Motion: the ship of state shall continue sailing along the same course and at the same speed as before the election began, unless storms or the prospect of running aground act upon it and force the Prime Minister and Cabinet to take the helm and actively intervene. But the civil service has especially since 2015 interpreted the Caretaker Convention more as an invitation to do nothing and halt all activity. The civil service, ironically, becomes the external force acting upon the ship of state, as if they as the deck hands would presume to put the ship in dry dock without instruction from the ship’s officers to do so. Civil servants privileged risk aversion above all and have sought to restrict government activity far more than a reasonable interpretation of the Caretaker Convention would require.

In 2019, I identified several examples of this over-zealous application of the Caretaker Convention. For example, the Canadian Intellectual Property Office asserted that it would “be unable to use social media or email alerts (Canadian Patent News) to announce updates about our services or web pages.”[1] Section 4 of the Guidelines state that departments and agencies can use social media accounts “to provide factual information” and “support routine program administration,” which should allow such routine announcements. However, this same section of the Guidelines also employs phrases like “abundance of caution” and “Any department seeking to make an announcement, as approved by the deputy head, should consult with the Privy Council Office” – which strike fear in the heart of most civil servants and paralyses them into inaction. Worse still is the declaration, “As a general rule, government or departmental announcements are curtailed during an election period.” To curtail means to reduce, not to eliminate altogether, but this technical legal language acts as the linguistic equivalent of warning colouration on poisonous or venomous animals and frightens civil servants away. Enforcing these Guidelines requires such a great effort and involves navigating multiple layers of approvals and delegated authority that simply doing nothing becomes an enticingly safe alternative. The Canada Energy Regulator also decided to stop publishing its wholly uncontroversial and routine Market Snapshots during the election in 2019.[2]     

Other provinces, like Newfoundland and Labrador, have followed suit. The Executive Council Office in St. John’s issued its own Guidelines on the Conduct of the Public Service During an Election Period in 2019, clearly drawing inspiration from PCO’s Guidelines. But as Lyle Skinner and I have demonstrated in our recent article in the Journal of Parliamentary and Political Law, civil servants in Newfoundland and Labrador have also not bothered to follow the guidelines that the Executive Council Office published, apparently withholding funds for routine public works like repaving roads.[3] Worse still, during Newfoundland and Labrador’s snap election earlier in 2021, some journalists informed me that the civil service invoked the caretaker convention as a rationale to refuse to answer their questions about routine matters. (Sadly, they did not file any stories on the matter that I can cite as public sources). The precedents over the last decade show that even when the federal and provincial machineries of government, as represented by the Privy Council Office in Ottawa and the Executive Council Offices of the provincial capitals, release official guidance on how civil servants should apply the Caretaker Convention, civil servants obfuscate, modify, or ignore these official guidelines and deliberately apply the Caretaker Convention more broadly than necessary – even in ways which, ironically, violate the entire purpose of these very same guidelines. Phil Lagassé has referred to this process as “Convention Creep,” which means that the Caretaker Convention becomes more extensive in application and longer in duration. Instead of limiting and clarifying the Caretaker Convention, these federal and provincial guidelines have enabled risk-averse civil servants to make the Caretaker Convention far more extensive than it should be.

In addition to this extra-legal, bureaucratic Convention Creep, Manitoba recently passed legislation extending limitations on political advertising by government departments and Crown corporations in the 90 days before the writs for a scheduled election under the fixed-date election law. These restrictions obviously cannot and do not apply to snap elections. In 2018, the Parliament of Canada amended the Canada Elections Act to limit political parties and candidates from spending too much on advertising during the 90 days before a scheduled general election extend the pre-writ to the 90 days before an election. The Treasury Board Secretariat also released the Directive on the Management of Communications in 2018 instructing the heads of communications in each department and agency to “suspend advertising activities on June 30 in a year in which there is a fixed general federal election date.” These provisos do not apply to the snap election in 2021, however.

Even as late as 2001, constitutional scholars in Canada debated whether the Caretaker Convention applied only post-writ in the two to three weeks between when the outgoing prime minister concedes defeat and the Governor General designates the incoming prime minister and then formally appoints the next prime minister and cabinet, or whether it also applied during the writ.[4] But by 2019, Canada and several provinces had already started to apply the Caretaker Convention at least 90 days before the writ began. In the quarter-century from 1994 to 2019, the Caretaker Convention has therefore expanded from the post-writ alone to at least 90 days pre-writ in the case of scheduled elections. As such, the fixed-date election laws have obviously enabled the expansion of the Caretaker Convention in majority parliaments and for scheduled elections. While snap elections preclude a pre-writ, I expect to observe additional examples of and further expansion of the scope and duration of the Caretaker Convention over the next decade because it plays into the combination of inertia and risk aversion of civil services.

The Caretaker Convention should mean that governments will refrain from signing major contracts during the writ and after an election if the results either not do yield a clear winner or if another party has won a majority, such as in 1979 when the Clark government held off on finalising the contract to obtain the F-18 Hornet fighter aircraft, or that defeated governments will not fill up vacancies just before leaving office. The Caretaker Convention does not and should not prevent epidemiologists from the Public Health Agency of Canada from continuing their regular press conferences on the state of the pandemic during the election – and until very recently, no serious scholar or civil servant would have suggested otherwise.[5] According to CTV News, PHAC has decided not to continue giving regular briefings on the press on the grounds that informing the public about new developments of this viral pandemic could influence the results of the election. Yet it is equally plausible that deciding not to keep the public informed by continuing these regular press conferences could also influence the results of the election. PHAC should have continued doing during the election what it had already been doing since March 2020. “Acting with restraint during an election” does not mean doing nothing. And even the older iterations of the Guidelines from 2008, 2015, and 2019 specifically cited government communications relating to “health and safety” as legitimate grounds for continuing public announcements during the writ. PHAC has abrogated its responsibilities and replaced prudence and common sense with an obtuse and paralytic risk aversion.  

The Caretaker Convention will continue to become more extensive if only because this process allows civil servants to assert more power over cabinet simply by doing absolutely nothing at all.            

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Notes


[1] Innovation, Science, and Economic Development Canada, Canadian Intellectual Property Office, “All Eyes on the Patent Treaty,” September 2019.

[2] Canada Energy Regulator, “Market Snapshot: Becoming the Canada Energy Regulator – Building on 60 Years of Energy Information,” 27 August 2019.

[3] J.W.J. Bowden and Lyle Skinner, “‘There’s Nothing Strategic About This’: How Dwight Ball Distorted the Caretaker Convention in Newfoundland and Labrador in 2019,” Journal of Parliamentary and Political Law 15, no.2 (2021): 211-235.

[4] Peter E. Larson, editor, Changing the Guard: Effective Management of Transitions in Government (Ottawa: Public Policy Forum, 2001), 35-36.

[5] Rachel Aiello, “Why Haven’t There Been Federal COVID-19 Briefings During the Election Campaign?” CTV News, 25 August 2021.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively in my field. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
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4 Responses to Extreme Risk Aversion: The Caretaker Convention in 2021

  1. Roger Bowden says:

    Good article. The decision by PHAC to cease updates during the Delta varient outbreak certainly smells like being political, it would not reflect well on T2 during his frivolous election campaign…thus adopt the Ostrich defence

    Like

  2. Rand Dyck says:

    Thanks!

    Virus-free. http://www.avast.com

    On Fri, Aug 27, 2021 at 4:29 PM James Bowden’s Blog wrote:

    > J.W.J. Bowden posted: ” The Caretaker Array in Star Trek: Voyager Prime > Minister Trudeau advised Governor General Mary Simon to dissolve the 43rd > Parliament of Canada and issue the writs of election on 15 August 2021. The > Privy Council Office marked the occasion by releasing” >

    Like

  3. PierreB says:

    As a one-time civil servant, this rings – oh so true. It’s not just risk aversion, though. Remember that civil servants are paid to show up. If no one measures output, so much the better. Great article.

    Like

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