Nicholas Barry, Narelle Miragliotta, and Zim Nwokora have followed up on their work from 2018 “The Dynamics of Constitutional Conventions in Westminster Democracies” with an article on cabinet manuals entitled “The Prime Minister’s Constitution: Cabinet Rulebooks in Westminster Democracies.” They conclude: “We find that these rulebooks project an account of prime ministerial power that is favourable to the prime minister.” They also noted that cabinet manuals “provide an authoritative account of the office of the prime minister and its role.” They argue that cabinet manuals serve as instruments of prime ministerial control over the rest of cabinet, and they are certainly right.
Once again, as with Jonathan Gould’s recent article “Constitutional Norms in the United States,” which I reviewed a few weeks ago, I am pleased to see that Barry, Miragliotta, and Nwokora made liberal use of three of the articles that Nick MacDonald and I wrote in the last decade, our introductory piece in Constitutional Forum in 2011, our ur-work on constitutional conventions and cabinet manuals published in the Journal of Parliamentary and Political Law in 2012, and our follow up work in Jackson and Lagassé’s book in 2012. Sometimes I can hardly believe that what we wrote, with my being in my early 20s and Nick being a non-descript and indeterminable age, has become one of the classics of this field. Our early success exposes, if anything, the dearth of scholarship and the moribund state of Canadian political science of the last decade, bogged down in obsessive and unthinking anti-Harperism in place of serious study of political and constitutional phenomena; indeed, a healthy and lively scholarship would have prevented us – a 23-year-old upstart and an ageless time lord that we were (no one knows how old Nick is) – from ever finding and exploiting a niche in the first place. In any case, I’m glad that Barry, Miragliotta, and Nwokora found our multiple articles helpful and a useful launch point for their own research into this field, and I’m grateful to them for having advanced the scholarship yet further with their new article.
Here I shall present some thoughts on their general framework and their specific Canadian examples in the spirit of pedantry for which I have gained such renown.
The three authors have created a rubric for classifying cabinet manuals in the United Kingdom, Ireland, Australia, Canada, and New Zealand and identified three stages of development in the establishment, expansion, and publication of cabinet manuals which roughly correspond to the early, mid- and late 20th century in three distinct stages, as follows.
- “Officialisation,” in the early 20th century, saw the appearance of the first loose-leaf notes aimed at improving coordinating within the executive. They attribute this first phase to the need to better coordinate from the centre in an increasingly complex structure of government. This phase in the United Kingdom corresponds to the David Lloyd George’s establishment of the Cabinet Office in 1916, which, in turn, soon published its first Rules for Procedure in 1917.
- “Institutionalisation,” in the mid-20th century, involved expanding upon these leaflets into “more official booklets” which covered a “broader range of matters, and, ultimately, consolidating the prime minister’s authority over cabinet. Labour Prime Minister Clement Atlee established the Questions of Procedure for Ministers in 1945 as an internal manual, which has since evolved into the Ministerial Code. Barry et al. ascribe this development to the “centralisation of prime ministerial power, which created new incentives for prime ministers to institutionalise rulebooks.”
- “Publication,” in the late 20th and early 21st centuries, meant that Privy Council Offices, Departments of Prime Minister and Cabinet, and Cabinet Offices “de-classified and shared with the public” the latest editions of their cabinet manuals because of “rising demand for governmental accountability.” In the macro, that probably holds true in the early 21st century in an era of decreasing deference.
But a specific event can often trigger the publication of a cabinet manual as well. New Zealand had maintained its cabinet manual since 1979 but did not publish it until 1996 specifically because New Zealanders supported a referendum to switch from single-member plurality to multi-member proportional representation, which by necessity made minority parliaments and coalition governments the norm and thus made the Governor General’s role in appointing and dismissing ministries more active and apparent. Similarly, the British Cabinet Office began work on the British cabinet manual under Gordon Brown and published a draft in 2009 when consistent opinion polling made apparent that Britons would probably elect a minority parliament in 2010. And sure enough, they did. The Conservatives under David Cameron and the Liberals under Nick Clegg then formed the United Kingdom’s first post-War coalition government. But in other respects, the British have followed the ideal type that the authors identify. For instance, the Cabinet Office now makes the Ministerial Code available online, and it has featured in some of the recent parliamentary debates around Boris Johnson’s competence and fitness (or lack thereof) as the Queen’s prime minister.
Those of you who have followed my work closely can no doubt already see why this ideal type does not describe Canada very well at all. I use British examples to illustrate their rubric because the British seem the follow their ideal type most closely, followed by New Zealand, and then Australia. (I really can’t speak to Ireland because we never examined it in our earlier work, and I haven’t studied its case myself since). They also did not mention another relevant British document called the Precedent Book, which bears a strong resemblance to the Manual of Official Procedure of the Government of Canada in its extensive scope and in its strictly internal use.
Under their rubric, the Manual of Official Procedure of the Government of Canada remained stuck at stage 2, as did the Precedent Book. But the Guidelines on the Caretaker Convention started at stage 2 in 2008, andPCO advanced them to stage 3 in 2015 by publishing a new edition on the first day of the writ that year. (I submitted the Access to Information request that caused PCO to release the Guidelines from 2008, which I, in turn, uploaded here to Parliamentum. But PCO never published them as a PDF or in HTML on its own website with the fanfare that they deserved). They acknowledge Canada’s deviation from the ideal type and attribute it to the structure of the Privy Council Office and the role of the Clerk of the Privy Council. Where David Lloyd George established the Cabinet Office in 1916 to better coordinate the war effort, Sir Robert Borden opted not to emulate this model in Canada. Not until March 1940, during the “Phoney War” stage of the Second World War, did Mackenzie King finally create a proper equivalent of the Cabinet Office in Canada, the Cabinet Secretariat, and empower the Clerk of the Privy Council with the additional role of Secretary to Cabinet. Before 1940, officials did not even attend cabinet meetings themselves! The bureaucracy could therefore only know the decision made by Cabinet but not the discussions that went into those decisions.
Barry et al. attribute stage 2 (“Institutionalisation”) to the “centralisation of prime minister power.” So perhaps the real reason why Canada does not follow their rubric is because heightened control or centralisation of executive authority in the prime minister long pre-dates the Manual of Official Procedure of the Government of Canada of 1968. Canadian historian Patrice Dutil has shown that it goes back to Confederation itself under Prime Minister Sir John A. Macdonald in 1867. And six prime ministers between 1896 and 1935 issued nearly identical iterations of an Orders-in-Council pertaining to “The Special Prerogatives of the Prime Minister” over and above the rest of cabinet. Sir Charles Tupper issued the first in May 1896. Sir Wilfrid Laurier later in 1896 found this device useful and re-issued it upon his appointment, as did Sir Robert Borden in 1911, Arthur Meighen in 1920, R.B. Bennett in 1930, and, lastly, W.L. Mackenzie King in 1935. Amongst other things, this memorandum established the quorum of cabinet at four ministers. All iterations of this Order-in-Council reserve key appointments as “the special prerogative of the Prime Minister”, including those of “Privy Councillors, Cabinet Ministers, Lieutenant Governors and Provincial Administrators, Speaker of the Senate, Senators, Chief Justices of all Courts, Sub-Committees of Council [which refers to cabinet committees], Deputy Heads of Departments, Librarians of Parliament, and Crown Appointments in both Houses of Parliament.”
Prime Minister Louis St. Laurent then developed a new type of executive instrument in 1953 called the “instrument of advice,” through which the Prime Minister alone, without cabinet, would tender constitutional advice to either the Governor General of Canada or the Queen of Canada on those classes of subjects which the earlier Orders-in-Council from 1896 to 1935 had identified as “the special prerogatives of the prime minister.” The instrument of advice therefore replaced the Order-in-Council as the primary executive instrument for matters which the prime minister alone decides. Prime Minister Pearson commissioned the Manual of Official Procedure of the Government of Canada in the mid-1960s over a decade after this second important milestone in centralising executive authority in the prime minister had taken place.
The authors regard Open and Accountable Government as Canada’s de facto cabinet manual: “The Harper Government published the Open and Accountable Government Guide (OA), the closest approximation to a cabinet manual in Canada presently.”But here I must present some quibbles. First, I have it on good authority that this guidebook originated with Pierre Trudeau in the 1970s, which would make it conform much more closely to their rubric and three stages of evolution in cabinet manuals than the authors themselves realised, except that it did initiate the trend of centralising executive authority in the prime minister. Second, the version that Prime Minister Harper released in 2006 bore the title Accountable Government: A Guide for Ministers, not “Open and Accountable Government.”Harper then released revised and expanded versions, with slight modifications to the title and the addition of new appendices, in 2007, 2008, and 2011. All four of these editions also sport a Conservative blue bar on the front cover. Third, not until 2015 when Justin Trudeau became Prime Minister, did the document become Open and Accountable Government; a Liberal red bar then also replaced the Conservative blue car on the cover. Trudeau added the “Open” to the title, perhaps a statement on how he wanted Canadians to perceive his ministry and as an implicit criticism of his predecessor. Fourth, Paul Martin released his version of the same guidebook, entitledGoverning Responsibly: A Guide for Ministers and Ministers of State, very soon after his appointment as prime minister in 2003; resplendent with Liberal red, it is substantively the same document as Harper’s and Trudeau’s, which the authors do not make clear. They should therefore attribute phase 3 (“Publication”) toPaul Martin in 2003 and not to Stephen Harper in 2006.
In conclusion, while cabinet manuals might have served as the primary instruments or expressions of prime ministerial authority over the rest of cabinet in the United Kingdom, Australia, and New Zealand, in Canada, they merely served as a secondary confirmations of this dynamic, which had already become deeply entrenched. The Manual of Official Procedure of the Government of Canada appeared in 1968, and the first iteration of what is now Open and Accountable Government appeared in the 1970s, but earlier executive instruments and practices had already made the Prime Minister of Canada paramount in the late 19th and early 20th centuries, with Tupper’s Order-in-Council on the Special Prerogatives of the Prime Minister in 1896 and St. Laurent’s creation of the instrument of advice in 1953.
- Constitutional Conventions
- Officialising Constitutional Conventions
- Codifying Constitutional Conventions
- Constitutional Conventions in the United States: Jonathan Gould’s “Codifying Constitutional Norms” (October 2021)
- Review of Gee and Webber’s “What Is a Political Constitution?” (November 2021)MacDonald, Nicholas A. and James W.J. Bowden. “The Manual of Official Procedure of the Government of Canada: An Exposé.”Constitutional Forum 20, no. 1 (17 October 2011): 33-39.Bowden, James W.J. and Nicholas A. MacDonald. “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia.” Journal of Parliamentary and Political Law6, no 2 (August 2012): 365-400.Bowden, James W.J. and Nicholas A. MacDonald. “Cabinet Manuals and the Crown.” Chapter 12 in Canada and the Crown: Essays on Constitutional Monarchy, edited by D. Michael Jackson and Philippe Lagassé, 179-195. Montreal-Kingston: McGill-Queen’s University Press, 2013.
 Nicholas Barry, Narelle Miragliotta, Zim Nwokora, “The Prime Minister’s Constitution: Cabinet Rulebooks in Westminster Democracies,” Governance (January 2022): 1.
 Barry et al., “The Prime Minister’s Constitution,” 2.
 Barry et al., “The Prime Minister’s Constitution,” 3-8.
 Barry et al., “The Prime Minister’s Constitution,” 7.
 Barry et al., “The Prime Minister’s Constitution,” 7.
 Yan Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (Vancouver: University of British Columbia Press, 2021), 32-33.
 Patrice Dutil, Prime Ministerial Power in Canada: Its Origins Under Macdonald, Laurier, and Borden (Vancouver: University of British Columbia Press, 2017).
Privy Council Office, Order-in-Council P.C. 1896-1853, “Functions of the Prime Minister,” 1 May 1896; Privy Council Office, Order-in-Council P.C. 1896-2710, “Functions of the Prime Minister,” 13 July 1896; Privy Council Office, Order-in-Council P.C. 1911-2437, “Function of the Prime Minister Defined,” 10 October 1911; Privy Council Office, Order-in-Council P.C. 1920-1639, “Functions of the Prime Minister Defined,” 19 July 1920; Privy Council Office, Order-in-Council P.C. 1930-1930, 7 August 1930; Privy Council Office, Order-in-Council P.C. 1935-3374, 25 October 1935.
 Barry et al., “The Prime Minister’s Constitution,” 4.