Towards Guidelines on Government Formation Facilitating Openness & Efficiency in Canada’S Governance

Towards Guidelines on Government Formation Facilitating Openness & Efficiency in Canada’s Governance

Final Report April 2012

ppforum.ca

The Public Policy Forum is an independent, not-for-profit organization dedicated to improving the quality of government in Canada through enhanced dialogue among the public, private and voluntary sectors. The Forum’s members, drawn from business, federal, provincial and territorial governments, the voluntary sector and organized labour, share a belief that an efficient and effective public service is important in ensuring Canada’s competitiveness abroad and quality of life at home.

Established in 1987, the Forum has earned a reputation as a trusted, nonpartisan facilitator, capable of bringing together a wide range of stakeholders in productive dialogue. Its research program provides a neutral base to inform collective decision making. By promoting information sharing and greater links between governments and other sectors, the Forum helps ensure public policy in our country is dynamic, coordinated and responsive to future challenges and opportunities.

ISBN: 978-1-927009-30-7

Table of Contents

Acknowledgements ...... 1 Recommendations for Guidelines on Government Formation ...... 2 Introduction ...... 3 The Role of the Public Service ...... 5 Canada’s constitutional and administrative conventions ...... 6 The Clerk’s responsibilities to government ...... 8 Public servants and transition teams ...... 9 Recommendations ...... 10 The Role of Political Leadership ...... 11 Parliament ...... 11 The Crown ...... 11 Recommendations ...... 12 The Role of the Media and General Public ...... 13 Recommendations ...... 14 Conclusion ...... 15 Appendix 1 ...... 17 Appendix 2 ...... 20 Bibliography ...... 24

Acknowledgements

On behalf of Canada’s Public Policy Forum, I wish to acknowledge and thank the participants of this study for providing much needed insight into how we might improve understanding of the process of government formation in our country.

This report synthesizes the findings of two roundtable discussions and a series of interviews with former Governors General, High Commissioners to Canada, former Clerks of the Privy Council, transition team leaders, scholars and members of the news media.

I especially want to thank my team at the Public Policy Forum, including James McLean, Research Associate, for drafting this report, Mary-Rose Brown, Ryan Conway and Dianne Gravel-Normand for their project assistance, and Julie Cafley, Vice President, for her counsel.

In releasing this report and initiating a dialogue on government formation in Canada, the Public Policy Forum remains true to its mission of facilitating open and frank dialogue on governance in our country. All individuals and groups who work to bring clarity to government policies and processes should be encouraged and applauded.

David Mitchell President and CEO Canada’s Public Policy Forum

Recommendations for Guidelines on Government Formation

1. The public service should develop principles-based guidelines on government formation. Once approved, these guidelines should be publicly accessible and clearly outline the relevant roles, responsibilities and conventions that are central to government formation in Canada.

2. In supporting the government of the day, the public service provides advice in a non-partisan manner. From time to time, the Clerk of the Privy Council may need to provide a “challenge function” for the Prime Minister and Cabinet in order to ensure that all organizational, legal and constitutional principles are understood.

3. Public service briefings for Opposition leaders on matters of government formation prior to and during an election period should be considered, with the approval of the Prime Minister. Guidelines should clearly outline when and how such briefings might occur.

4. During election periods, regular dialogue between senior public servants and political transition teams should be fostered.

5. Parliament should meet within a prescribed period of time following an election.

6. Rules on confidence votes are properly in the domain of Parliament and should not be included in government formation guidelines.

7. Special care should be taken to ensure that the Crown is kept above politics.

8. Consideration should be given to ways of engaging the news media and the public in the process of developing guidelines on government formation.

9. The public service is best positioned to provide a neutral “safe space” to convene, inform and educate all stakeholders on the process of government formation. Discussions should ideally take place during periods when a government is not at risk of being defeated or when Parliament might be dissolved.

Introduction

Canada stands out among developed Commonwealth countries in not having clear and publicly- accessible guidelines describing how governments are formed. For most of its history, our country has been governed by majority parliaments and transfers of power between political parties have occurred in an orderly manner. Under these circumstances, few have acknowledged a need to better clarify how government functions during periods of transition. However, the past decade has seen a degree of uncertainty in the ways in which governments are formed. The frequency of federal elections (five since 2000), the recent influence of minority parliaments and confusion around issues such as prorogation or the prospect of coalition governments have all underscored the need for a better understanding of our governance processes. While Canada returned to a majority parliament in 2011, the last decade has illustrated that a greater level of clarity and transparency on government formation processes could benefit all those who are charged with establishing a new administration with few guidelines. The complicated and time-sensitive transition process involves many stakeholders, including elected representatives, the Crown and public servants, each of whom must balance political priorities and administrative realities, while conforming to laws, principles and conventions. In the absence of publicly-accessible guidelines, it is often unclear what specific responsibilities stakeholders are expected to fulfill, and how forgotten conventions might be respected or enforced. Over the past year, Canada’s Public Policy Forum convened a series of discussions to explore the possible utility of establishing a set of guidelines on government formation in our country. On March 21, 2011, we brought together constitutional and policy experts, including former senior public servants, transition team leaders, scholars and journalists in a discussion to identify the most significant issues during periods of government formation and transition.1 Roundtable participants agreed that political leaders as well as the Crown, Clerk of the Privy Council and the news media all have special roles to play during transition periods but their responsibilities are sometimes unclear and misunderstood. Among the participants’ recommendations was the call to establish a set of publicly-available guidelines on government formation to inform all stakeholders during such periods. In June 2011, we invited Sir Gus O’Donnell, then-Secretary of the Cabinet and Head of the Civil Service of the United Kingdom, to meet with a group of Canadian constitutional and parliamentary experts to discuss the UK’s Cabinet Manual and how it addresses questions of government formation.2 Finally, in the Fall and Winter of 2011 we conducted 20 executive interviews with policy and constitutional experts whose insights helped refine the findings of our previous roundtable discussions. This group included former Canadian Governors General, Clerks of the Privy Council, High Commissioners, senior public officials in the UK, New Zealand and Australia and Canadian constitutional scholars.

1 The findings of this roundtable discussion can be found in the summary report, Government Formation in Canada: Public Policy Forum Ottawa Roundtable (March 2011) 2 For more information on the June 2011 roundtable, please refer to our summary report, Government Formation: The Need for Clear Guidelines, Roundtable with Sir Gus O’Donnell (June 2011)

The discussions that we convened over the last year have built on projects the Forum led in 1995 and 2000.3 Our more recent roundtables and interview participants found consensus on four key observations upon which our recommendations are based: 1. There is a need to clearly articulate rules and responsibilities for periods of government formation. Participants agreed that such guidelines should present the main principles that apply when governments are formed, utilizing and expanding on existing procedural documents in the Privy Council Office (PCO). These guidelines should be made available in clear, accessible language. 2. Such guidelines should retain a necessary level of flexibility in their application. They should be similar in their level of discretion to those provided in the Cabinet Manuals of Australia, New Zealand and the United Kingdom. Guidelines would help ensure that consistent practices are applied in Canada. 3. There is also a need to distinguish among a range of potential scenarios and the impacts each may have on the formation of a government. The guidelines should clearly explain how government works in practical terms, not how it should work or be reformed. In other words, guidelines should be descriptive, rather than prescriptive. 4. Finally, the guidelines should be released publicly so that the public service, political parties, the news media and the general public will share a common understanding and have clear expectations of the procedures during periods of government formation. The recommendations of this report represent our attempt to help bring clarity to the government formation process, and are the culmination of many years of collected wisdom from constitutional and policy experts and practitioners. It is our intention that this report may serve as a resource as Canada moves towards a better understanding of its own practices and policies regarding government formation.

3 Beginning in 1995, the Forum partnered with Ekos Research Associates Inc. to explore management challenges and opportunities facing the Ontario Public Service. The findings can be found in the report, Direction for Reform: The Views of Current and Former Deputy Ministers on Reforming the Ontario Public Service (1995).

In 2000, the Forum released Changing the Guard: Effective Management of Transitions in Government, an edited collection of writings on the transition process in Canada. This concise volume identifies the pertinent roles, stakeholders and procedures that shape the government formation process before, during and following an election.

The Role of the Public Service

Canada’s professional, non-partisan public service is a vital source of advice and support, allowing governments to implement policy. During periods of transition, the great majority of those working in the public service carry out their work as normal, while the political leadership (re)organizes the structures of government. For senior public servants, however, the absence of clear guidelines that elucidate the public service’s duty to uphold conventions and protocol can be troubling, especially since the public service plays an instrumental role in the transition between one government and the next. Indeed, perhaps nowhere is this responsibility felt more significantly than in the Privy Council Office. As the senior-most leader of the public service, the Clerk of the Privy Council is entrusted with carrying out a number of vital and challenging roles, including:

 As Deputy Minister to the Prime Minister and Secretary to Cabinet, the Clerk is responsible for providing professional, non-partisan advice to Canada’s executive leadership on administrative, policy and constitutional matters. Included within this role is the duty to maintain the records and memory of government.

 As Head of the Public Service, the Clerk is responsible for running an institution that helps ensure the quality of life of all Canadians. This position requires the Clerk to coordinate policy and protocol with all deputy ministers and numerous departments and agencies on matters that range from internal human resources to national defence.

 Also, it should be noted that the Clerk of the Privy Council plays an important role as a “custodian of the constitution.” While this may not be an official role for the Clerk, and does not supersede the roles of either the Governor General or the Supreme Court of Canada as guardians of the constitution, the Clerk is responsible for ensuring that conventions are observed and respected, especially during periods of government formation. In addition to serving as an advisor to the Prime Minister and government on constitutional matters, the Clerk is expected to ensure that laws and principles are upheld and respected by both political and public service leaders. With the responsibility to carry out these important roles, it is essential that the Clerk has a clear understanding of the rules, expectations and responsibilities assigned to all participants in the government formation process. Specific conventions and responsibilities are essential to the process and must be clearly enunciated and well understood. In fact, Canada has procedural manuals that articulate some essential principles that help guide the government formation process, including: The Manual of Official Procedure of the Government of Canada (1968), Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During an Election (2008) and Accountable Government: A Guide for Ministers and Ministers of State (2011).4

4 Spreading information across these different sources may have helped perpetuate confusion on the proper processes involved in forming governments in our country. Further, not all of these documents are publicly accessible.

It was agreed that there would be great utility in developing concise, publicly-accessible guidelines that consolidate, update and expand on the principles found in these documents. Participants also agreed that consolidating into a single document the roles, responsibilities and relationships of all stakeholders would help provide clarity and coherence.

Canada’s constitutional and administrative conventions

In the Westminster system, to which Canada adheres, conventions guide governments on how best to meet procedural and constitutional principles. These conventions, some of which have existed in British constitutional law for centuries, confer upon political leaders a wide degree of discretion on when and how they might be applied. The nature of these conventions provides both guidance and flexibility. However, the unwritten nature of such conventions also presents challenges. Without clear guidelines on when and how specific conventions are to be applied, there can be confusion during times of crisis or uncertainty. Those who are entrusted to enforce the rules discover that conventions are often misunderstood and inconsistently applied. In Canada, one convention in particular exemplifies this confusion:

In situations where the government has lost the confidence of the House, the Principle of Restraint (caretaker convention) guides public servants’ actions until a new government assumes office. Although the Prime Minister and Cabinet retain many of their governing privileges during an election period, the caretaker convention entrusts the Clerk with the authority to ensure that no significant decisions are made that might bind a future government (particularly on issues that relate to policy, appointments and spending) both during and immediately after an election. In 2008, the Privy Council Office issued an important set of guidelines that defined the roles of ministers and public servants during elections, and outlined the caretaker convention.5 In these guidelines, the rules on how a government might function when the caretaker convention is invoked are explained: The conventional restriction limiting the extent to which the Government should exercise its authority applies whether it has lost a vote of confidence in the House or whether the Prime Minister has asked for dissolution on his own initiative…This does not mean that the government is absolutely barred from making decisions or announcements, or otherwise taking action, during an election. It can and should do so where the matter is routine and necessary for the conduct of government business, or where it is urgent and in the public interest…In short, during 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).6

5 Government of Canada. (2008). Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election. Ottawa: Her Majesty the Queen in Right of Canada, p. 1. These guidelines were made available in 2011 through a request pursuant to Canada’s Access to Information Act. 6 Ibid, p.2.

These guidelines represent a significant improvement on previous documents that have outlined the conduct and conventions guiding key stakeholders during periods of government formation. However, greater clarity is required on more specific issues, including when the period of caretaker government should be concluded. Participants in our study also agreed that the lack of clear guidelines on how best to enforce the caretaker convention has raised significant questions, especially regarding the Clerk’s role during periods of government formation, including:

 What is the role of the Clerk in ensuring that the caretaker convention is observed?

 Should this convention be enforced during a national referendum?

 Can a “penalty” or other consequence be imposed in the event that a government violates the caretaker convention?

 Can the Clerk brief Opposition leaders during a period when the carteaker convention is in effect? If so, what rules might serve as a useful guide?

 And, does the convention also apply to law enforcement bodies, Crown corporations and agencies?7 Further, understanding the timing, scope and authority of the caretaker convention is important because the period between the dissolution of Parliament and first sitting is especially long in Canada (an average of 144 days).8 In the United Kingdom, by contrast, the government formation period lasts an average of 17 working days. In New Zealand, the average is even shorter (1-2 weeks).9 Since Canada’s lengthy process positions our country as an outlier among other Commonwealth nations, it is even more essential that key principles, including the caretaker convention, are clearly articulated, well understood and made available to all stakeholders.10 To be sure, the absence of clear guidelines can also have advantages. In Canada, an imprecise interpretation of conventions has sometimes provided a great deal of flexibility in addressing unique and complex challenges. Participants agreed that in order to maintain effective decision- making, it is essential that some flexibility is preserved.

7 In the Cabinet Manuals of the United Kingdom, New Zealand and Australia, codifying rules and conventions have helped resolve some of these questions, allowing each government to avoid confusion during times of crisis and uncertainty.

8 A summary of research on this matter, conducted by Professor C.E.S. Franks, of Queen’s University, can be found in Appendix 2.

9 There is a strong expectation among many New Zealanders that governments should form “relatively quickly” after an election. Following the 1996 general election, it took the incoming government nine weeks to form and meet the House. While this may have represented a unique situation (it was the first government elected under the new proportional representation framework), the public was upset by the delay. Today, there is an expectation that new governments will form 7-14 days following an election.

10 One participant also suggested that guidelines could require the Prime Minister to announce when the caretaker convention will not be observed.

Guidelines are still needed to explain the “principles” of when and how key conventions are to be enforced. Instead of instructing the Clerk on how to act, a principles-based set of guidelines would provide a framework from which to operate, helping to improve clarity, transparency and consistency. With a better understanding of the constitutional and administrative rules that apply to periods of government formation, all stakeholders would be better positioned to carry out their duties effectively.

The Clerk’s responsibilities to government First and foremost, the public service is responsible to the government of the day. During periods of stability or uncertainty, the Clerk must ensure that the government’s requests are executed with the high degree of professionalism and integrity that has come to characterize Canada’s public service. As discussed above, this is particularly important during a “hung” parliament when numerous constitutional conventions will influence how leaders make decisions. It might also be necessary for the Clerk to go beyond the role of informing the government and helping to carry out policy. Many participants agreed that the Clerk of the Privy Council might at times need to “challenge” certain assumptions held by elected representatives or the executive when they are not based on past practices or institutional realities (speak truth to power). In a non-partisan and professional manner, the Clerk is expected to communicate all legal, organizational and constitutional limitations that might impact a government’s desired course of action. The Clerk’s responsibilities to government are further complicated during transition periods. According to some participants, the commitment to serving an incumbent government has caused challenges in cases where an election results in a change of administration. Under such situations, the Clerk might be viewed as a “political ally” of the previous government. In recent years, this practice has been common at the provincial level, where there has been a high turnover rate in the senior-most ranks of the public service when a new premier assumes office. At the federal level, by contrast, deputy ministers and clerks are seen as playing a non- partisan role and are much more likely to retain their positions following a transition in government, with the Clerk continuing in office at least through a period of transition.11 In order to maintain institutional memory and expertise, it is essential that incoming governments retain senior public servants during and following a transition. Some participants agreed that developing a closer working relationship between the public service and Opposition leaders might be an effective confidence-building measure that should be considered. Of course, the public service’s firm commitment to serving the government of the day must always be maintained. But meeting with Opposition leaders on specific issues could serve the dual role of informing and building trust between the public service and all Parliamentarians.

11 In New Zealand, for example, Chief Executives (Canada’s equivalent of Deputy Ministers) don’t change when a new government is formed; they serve across administrations and provide essential briefings during transitional periods. Although the Prime Minister makes appointments, changes to the institutional structure of government are rare (i.e. creating or combining departments) and the transition process is both standardized and “much smaller” compared to other jurisdictions.

Within the British Commonwealth there exists no consensus on when and how the public service might brief or consult Opposition leaders. Whereas the UK Cabinet Manual stipulates that the Cabinet Secretary must consult the Opposition during periods of uncertainty, in New Zealand there is no tradition of briefing Opposition leaders ahead of an election, despite ongoing debate on this issue. Canada’s mixed record on Opposition briefings provides little direction on this matter. Many participants agreed that Canada should adopt an informative, generic and predictable briefing process that would help build trust between the public service and Opposition parties.12 This briefing process would be especially important during periods of uncertainty, such as in a minority parliament. Although one participant held the view that the Clerk should inform the Prime Minister, but not necessarily request permission to brief the Opposition, there was a consensus that the Prime Minister should approve or even initiate such briefings. Establishing a predictable timeline for Opposition briefings would also be important for providing senior public servants with clear expectations. Participants agreed that during a majority parliament, Opposition briefings should occur within the final year of a government’s mandate, since elections are then easier to predict. During a minority parliament, by contrast, such briefings might be held when the government determines there is a high probability of an election. When a vote of non-confidence is pending, for example, such discussions may need to be considered.

Public servants and transition teams Following an election, a political transition team that is assembled months earlier will engage with the Privy Council Office with its own agenda, timelines and assumptions for how a new government will work. These teams, usually headed by senior political figures, are charged with the overwhelming task of laying the framework from which the new government will function. The quick and effective formation of a government, implementation of political appointments, and organizational and policy changes will all be vital for establishing stability in the first days of a government’s life, and may ultimately define an administration’s entire term in office. Political transition teams will be relieved to discover that they are not alone in carrying out this monumental task. Anticipating that new staff and ministers will be unfamiliar with the government formation process, senior public servants actively seek to inform and coordinate with an incoming administration. By preparing briefing books and providing expert advice, senior government officials are able to inform those charged with forming a government about pressing issues, orders of process, organizational limitations and constitutional conventions. Communicating many of the institutional processes to incoming staff allows the public service to provide a sense of continuity that will make many of the aforementioned tasks easier. Following an election the public service instructs the Prime Minister’s Office of the files requiring immediate attention. It is often helpful if the public service chooses the top issues the

12 In determining how best to structure Opposition briefings, the UK Cabinet Manual provides a potentially useful point of reference, differentiating between Cabinet Office-Opposition consultations that are held prior to, during and following an election. For more information on the rules pertaining to Opposition briefings in the UK, please see sections 2.13 to 2.16, 2.21, 2.29 and 2.30 of the UK Cabinet Manual.

Cabinet will need to consider since, according to one participant, the public service “can’t always assume that transition teams will know which issues are of highest importance.” Regardless of the Prime Minister’s style and approach, the public service should play an active role by providing non-partisan options and considerations. For example, the public service should instruct the Prime Minister to consider the rules around swearing in of ministers, and provide clarity around the various issues that will arise as they select individuals to fill each Cabinet post. This level of cooperation must be encouraged. Participants agreed that developing a strong, mutually respectful relationship between transition teams and the public service is essential to a successful transition process. By clarifying the rules and responsibilities that are so vital to the government formation process, leaders in the public service and on transition teams will be better positioned to understand and carry out their responsibilities.

Recommendations

2. In supporting the government of the day, the public service provides advice in a non- partisan manner. From time to time, the Clerk of the Privy Council may need to provide a “challenge function” for the Prime Minister and Cabinet in order to ensure that all organizational, legal and constitutional principles are understood.

4. During election periods, regular dialogue between senior public servants and political transition teams should be fostered.

The Role of Political Leadership Parliament Participants in our study identified a few areas related to government transition where greater clarity is required on the role of Parliament. The first issue, highlighted above, concerns the length of time between the dissolution of Parliament and the first sitting of the House of Commons in a new Parliament. Without clear guidelines on when Parliament should reconvene, lengthy delays call into question whether a new government enjoys the confidence of the House – perhaps the most important principle in government formation. As discussed, a long adjournment process places a greater burden on senior public servants who must determine the number of conventions that are applicable and the duration for which they should be invoked. Consideration could be given to providing greater clarity on when Canadians can expect Parliament to reconvene following an election. This would help provide clarity and confidence in our process of government formation. Currently, there is disagreement over the rules and nature of confidence votes in Canada. Without a better understanding of the rules governing confidence, key stakeholders are unable to determine whether the government has the unilateral authority to proclaim matters of confidence. Are confidence votes used too sparingly or too freely in our Parliament? Some roundtable participants suggested that too often “trivial votes” are declared matters of confidence and that giving Parliament more authority may limit this practice. Others suggested that governments need to retain the right to define what is and what does not constitute a confidence motion. For example, it could be a matter that is central to a government’s policy agenda. Despite differences of opinion, there was consensus that confidence votes are the domain of Parliament and should not be included in guidelines on government formation.

The Crown As a constitutional monarchy, Canada reserves important privileges for the Crown, yet the Governor General does not have the legitimacy that comes with being popularly elected. The absence of a manual to guide the Crown’s decisions has meant that Governors General assume office without a detailed understanding of their constitutional responsibilities. Indeed, Governors General often rely on constitutional advice from experts outside of government to carry out their duties effectively. Under such circumstances, it might not be surprising that a lack of clarity has helped perpetuate significant constitutional crises. The infamous King-Byng dispute of 1926 and the more recent 2008 prorogation crisis both illustrated the confusion and competing interpretations that are possible. Following both cases, Canadians realized that the lack of consensus on some of the fundamental principles of government formation can have significant consequences. Thankfully, these instances have been infrequent in Canada.

One participant suggested that in a situation where political leaders cannot come to an agreement on who has the right to form a government, the Governor General might be the only legitimate authority able to assume the role of arbiter. Is the Governor General the “adjudicator of last resort”? If so, this may need to be spelled out in further detail. Determining the roles and responsibilities of the Crown, especially during periods of uncertainty, would lessen the chances of constitutional crises and help to provide some guidance for the Crown during periods of uncertainty. According to one participant, those charged with developing guidelines for government formation might need to carefully consider the unique role of Canada’s Governor General. To some extent, the UK system may not be a fair comparison to Canada’s, since the Queen and Governor General are not synonymous. In the UK, the role of the Crown in the process of government formation is intentionally minimal. It was noted that an important goal of the recently approved UK Cabinet Manual was to ensure the separation between the monarchy and the electoral process. Nevertheless, those responsible for developing Canadian guidelines may wish to consider the UK’s example. By clearly documenting the role and responsibilities of the Crown before, during and following elections, Canadians would be able to ensure that the separation between the monarchy and the electoral process is maintained.13 Participants agreed that Canada should follow the United Kingdom’s lead in keeping the Crown above politics.

Recommendations

5. Parliament should meet within a prescribed period of time following an election.

6. Rules on confidence votes are properly in the domain of Parliament and should not be included in government formation guidelines.

7. Special care should be taken to ensure that the Crown is kept above politics.

13 In Canada, the UK and New Zealand, parliamentarians ultimately decide who may form a government following an election. During the government formation process, the Crown is expected to select a leader who is most likely to command parliamentarians’ support, or confidence, in the House.

The Role of the Media and the General Public Over the past generation, there has been a growing distrust between the news media and political leaders. Indeed, the role of journalists in holding governments to account has grown in importance in terms of providing transparency and accountability in democratic governance. However, the media’s close scrutiny of the words and actions of elected representatives has sometimes bred suspicion and distrust. In addition, strict rules on how public servants can communicate with the media and general public has meant that information on important issues is sometimes not shared, prompting a reliance on experts outside government to provide clarity and context. Although many believe the news media has moved from its more traditional information and education role to something resembling entertainment, participants agreed that the media is essential in communicating important information to the public and therefore an indispensable element in the government formation process. Studies have also shown that a majority of Canadians have a limited understanding of how and why their government functions as it does.14 As demonstrated during the prorogation crisis of 2008, when the rules of government formation are not well understood, the public is unable to understand or predict how a crisis might be resolved. Senior public servants who are charged with establishing prospective Canadian guidelines on government formation might wish to consider the utility of initiating a public engagement campaign, a strategy that was embraced in both New Zealand and the United Kingdom when Cabinet Manuals were being completed. These public consultations brought together elected officials, public servants, the media and interested citizens, with the objective to increase the public’s understanding for how their government works and to give citizens and stakeholder groups the opportunity to comment on the draft Cabinet Manual and suggest changes. Today, many in New Zealand and the United Kingdom view the public’s involvement in this process as being an important element in public education and building popular support for the establishment of their Cabinet Manuals. Further, as a result of being engaged in the process in the United Kingdom, the news media largely refrained from publishing sensationalized stories during the period that led to the establishment of a coalition government. This strategy of engaging the media as an active participant in the process contributed to an open and transparent resolution to a situation that would otherwise have been more mysterious and chaotic. As in the UK, Canada’s non-partisan public service would be well positioned to convene, educate and consult the media and public during the development of prospective guidelines on government formation.

14 Ipsos Reid. In Wake of Constitutional Crisis, New Survey Demonstrates that Canadians Lack Basic Understanding of our Country’s Parliamentary System. (December 2008).

Such consultations could help answer important questions, such as:

 Should standardized communication processes be developed between the news media, constitutional scholars and the public service in order to better share information, increase transparency, and help inform the public?

 Should the news media seek to immediately pronounce an election-night winner, or is there a duty to be cautious in the event of an uncertain election outcome?

 How can interested non-government stakeholders (i.e. the news media, scholars and the general public) contribute to a better understanding of the government formation process?

Recommendations

8. Consideration should be given to ways of engaging the news media and the public in the process of developing guidelines on government formation.

Conclusion Over the past year, Canada’s Public Policy Forum has worked to identify how elected representatives, senior public service leaders and the news media might help provide greater clarity on the rules that guide stakeholders during periods of government formation. The objective of this study is not to recommend that a formal Cabinet Manual be created in Canada, similar to the UK and other jurisdictions. While such a Manual may be worthy of consideration, our goal is more modest and can be summed up in the proposition that a simple and clear set of principles-based guidelines for government formation should be developed. And, when approved, these guidelines should be made accessible to the Canadian public. This report is meant to help provide a foundation or starting point for those who might develop such guidelines. It is our intent that the recommendations in this report will help initiate a broader discussion on how governments are formed in our country, and what roles key stakeholders might fulfill during periods of uncertainty. We already have some key documents that could be used to help in the development of guidelines, including:

 The Manual of Official Procedure of the Government of Canada (1968);

 Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During an Election (2008); and

 Accountable Government: A Guide for Ministers and Ministers of State (2011) It is our recommendation that consideration be given to establishing a set of concise, publicly- accessible guidelines that consolidates, updates and expands on the principles described in these documents. As discussed above, the responsibilities and relationships that transition teams and the news media exercise in the government formation process requires greater clarification. More specific instructions would also help guide the Clerk of the Privy Council on when to brief Opposition leaders and how to carry out duties in situations where responsibilities may conflict. Consideration should also be given to making this set of guidelines, when approved, available on government websites in both official languages in order to ensure greater transparency and access. Also, the experiences of the United Kingdom and New Zealand in establishing their Cabinet Manuals might provide some useful insights to those who might be asked to develop government formation guidelines in Canada. In these Commonwealth countries, the decision to establish a Cabinet Manual was precipitated by a combination of factors, including:

 a period of constitutional uncertainty;

 active support among the political leadership, and;

 a campaign to educate the public. In New Zealand, the process to establish rules on government formation was driven in large part by the adoption of the mixed-member proportional (MMP) electoral system during the 1996 general election. This new system increases the chances of a minority parliament, raising

15 concerns among elected representatives and the public on whether and how such arrangements would function in New Zealand. In 2001, New Zealand established a publicly-accessible Cabinet Manual that devoted a full chapter to the rules that guide policymakers during periods of government formation and transition.

As in New Zealand, the United Kingdom’s Cabinet Manual represents the evolution of significant efforts both inside and outside government to draw attention to the important need for clarity around the operation of government in a parliamentary context, including the rules of government formation.

Much of the work in the UK to initiate a dialogue on government formation was led by the non- partisan Institute for Government in collaboration with the Constitution Unit of the University College of London. Their joint report, Making Minority Government Work,15 was the result of several years of work and represented significant consultations with politicians, senior civil servants, parliamentary staff, academic experts and journalists, both in the UK and in other Westminster-style countries.

The now-finalized Cabinet Manual has been lauded for its simplicity of language and clarity in identifying the rules and practices of modern governance as they currently exist in the UK. Rather than serving as an exclusive guide for public servants and politicians, it is also considered a significant document for public education. In Canada, the return in 2011 to a period of majority parliaments has reduced the likelihood that a constitutional crisis related to this issue will soon arise. Likewise, there is also little indication that guidelines on government formation are high on the public agenda. Nevertheless, participants in our study agreed that the best time to commence a process of establishing such guidelines would be during a period of political stability. The hyper-partisan atmosphere that often characterizes minority parliaments can make it difficult for elected leaders to look beyond personal or party advantage. The election of a majority parliament has now created the ideal “peace-time” conditions allowing for a neutral and reasoned discussion on this important subject. With the prospective support of the Prime Minister, political parties, the public service and news media, we have an opportunity to take the example set by the UK and New Zealand to create publicly-available guidelines for the successful and smooth process of government formation in our country. Instead of being required to consider these issues anew with every change of government, guidelines on government formation would help serve as a bridge between administrations and reduce the confusion that can sometimes arise under such circumstances. The outcome of such an exercise in Canada would be a great service to all stakeholders in the government formation process and consistent with the Canadian tradition of peace, order, and good government.

15 Hazell, Robert et al. (2011). Making Minority Government Work: Hung parliaments and the challenges for Westminster and Whitehall. London: Institute for Government. Accessed online at: http://www.ucl.ac.uk/public- policy/UCL_expertise/Constitution_Unit/147.pdf

Appendix 1

Government Formation in Canada Study Participants

Paul Benoit Susan Delacourt Senior Counselor Senior Writer Hill & Knowlton in Ottawa Toronto Star

Margaret Bloodworth Adam Dodek Former Associate Secretary to the Cabinet Professor and National Security Advisor University of Ottawa to the Prime Minister Government of Canada C.E.S. (Ned) Franks Professor Emeritus The Honourable Jocelyne Bourgon Queen’s University Former Clerk of the Privy Council Government of Canada Giles Gherson Deputy Minister of Policy and Delivery and His Excellency Mr. Justin Brown Associate Secretary of the Cabinet High Commissioner of Australia to Canada Government of Ontario Commonwealth of Australia

V. Peter Harder Peter Burn Former Deputy Minister Partner Treasury Board, Solicitor General, Gowlings Citizenship and Immigration, Industry and Foreign Affairs and International Trade.

Derek Burney Former head of the Conservative Transition Alex Himelfarb Team (2006 and 2007). Former Clerk of the Privy Council Government of Canada

Mel Cappe Former Clerk of the Privy Council. Peter Hogg Government of Canada Professor Emeritus Osgoode Hall Law School

The Right Honourable Adrienne Clarkson The Right Honourable Michaelle Jean Former Governor General Former Governor General Government of Canada Government of Canada

Rebecca Kitteridge Iain Rennie Secretary to the Cabinet and Clerk of the State Services Commissioner Executive Council Government of New Zealand Government of New Zealand

Colin Robertson Gary Levy Senior Strategic Advisor Editor McKenna, Long and Aldridge Canadian Parliamentary Review

Peter H. Russell The Honourable Kevin Lynch Professor Emeritus Former Clerk of the Privy Council University of Toronto Government of Canada

Jeffrey Simpson Gregory Marchildon National Affairs Columnist Professor Globe and Mail Johnson-Shoyama Graduate School of Public Policy at the University of Regina The Honourable Paul Tellier Former Clerk of the Privy Council Cheryl Milne Government of Canada Executive Director David Asper Centre for Constitutional Rights University of Toronto Michael Webster Deputy Secretary of Cabinet Government of New Zealand David J. Mitchell President & CEO Canada’s Public Policy Forum Paul Wells Senior Columnist Maclean's magazine Sir Gus O’Donnell Former Secretary of the Cabinet and Head of the Home Civil Service David Zussman Government of the United Kingdom Jarislowsky Chair in Public Sector Management University of Ottawa. Peter Oliver Professor, Faculty of Law University of Ottawa

His Excellency Andrew Pocock High Commissioner of the UK to Canada Government of the United Kingdom

Observers

Lois Claxton Yvan Roy Senior Advisor to the Governor General of Deputy Secretary to Cabinet, Legislation Canada and House Planning and Machinery of Rideau Hall Government Privy Council Office Government of Canada

Appendix 2

Parliaments, 1945-2008 Dissolution, Elections, First Sittings, Etc.

CES Franks, 23 March 2011

Election Election Date Recess prior to Dissolution to Dissolution to Election to Recess to Dissolution Election First Sitting First Sitting First Sitting (days) (days) (days) (days) (days)

40th 2008.10.14** 78 37 72 35 150 39th* 2006.01.23** 0 55 125 70 125 38th 2004.06.28** 8 36 134 98 142 37th 2001.11.27 0 36 99 63 99 36th 1997.06.02 0 36 148 112 148 35th* 1993.10.25 83 47 131 84 214 34th 1988.11.21 0 51 72 21 72 33rd* 1984.09.04 0 57 119 62 119 32nd* 1980.02.18 0 66 122 56 122 31st* 1979.05.22** 0 57 197 140 197 30th 1974.07.08 0 60 144 84 144 29th 1972.10.30** 0 59 125 66 125 28th 1968.06.25 26 63 142 79 168 27th 1965.11.08** 70 61 132 71 202 26th* 1963.04.08** 0 61 99 38 99 25th 1962.06.18** 0 60 161 101 161 24th 1958.03.31 0 58 100 42 100 23rd* 1957.05.10** 0 59 185 126 185 22nd 1953.08.10 29 58 152 94 181 21st 1949.06.27 0 58 137 79 137 20th 1945.06.11 0 56 143 87 143

Average all elections 14 54 130 77 144

*Result change of 12 66 154 91 155 governing party **Result minority Parl't 17 56 137 83 154 Result Majority Parliament 12 54 126 72 137

Source: Parliament Info website, A to Z Index, Various Tables

Appendix 2 continues

Appendix 2 continued

Observations: Parliaments, 1945-2008: Dissolution, Elections, First Sittings, Etc.

CES Franks, 23 March 2011

1) The data in my Table “Parliaments, 1945-2008: Dissolution, Elections, First Sittings,” is drawn from various tables on the Parliament Info website. There are minor variances between the data in some of the tables on this site, but these variations have no impact upon the results presented in my table.

2) The period covered, from 1945 to 2008, includes 21 of the 40 general elections in Canada from 1867 to 2008. This period also covers sixty-five of the one hundred and forty-three years (40%) of Canada’s existence.

3) In nine of the twenty-one elections from 1945 to 2008 the House was already in recess when a Parliament was dissolved for a general election. These elections, and the number of days the House had been in recess at the time of dissolution, are identified in the “Recess Prior to Dissolution” column in the table. This period of recess has been as long as 83 days (1993). On three occasions it has lasted more than two months.

4) During the times the House is in recess a government constitutionally possesses and exercises the full powers of a government that enjoys the confidence of the House. The recess period is not normally considered part of the election period. I shall raise some questions about this below.

5) Between 1945 and 2008, on average 146 days, or about four and a half months, has elapsed between the last sitting of the House in one Parliament and the first sitting of the next Parliament.

6) The longest period from the last sitting of one Parliament to first sitting of the next in this period, 214 days, occurred between the 34th and 35th Parliaments, in 1993-4. The House adjourned for the summer on June 17 of 1993. After a one-day meeting of Parliament for the formal occasion of royal assent - no question period, motions, or debate, and most members absent - on June 23, the summer recess continued until Parliament was dissolved on September 8, 76 days later. The total length of the summer recess, ignoring the purely formal occasion of royal assent, was 83 days. The House was still in recess when it was dissolved on September 8. The 35th general election was held on October 25, after an election period of 47 days. The new Parliament did not meet until January 16, 2004, 84 days after the general election. The government changed as a result of this election, from a majority Progressive Conservative government to a majority Liberal government. When Parliament met for the first time in the 35th Parliament on January 16, 2004, 214 days, or seven months, had elapsed since the last sitting of the House.

7) The longest period between the end of one Parliament and the beginning of the next when there was both a change of party and the result, was the minority Parliament created by Canada’s 31st general election on May 22, 1979. Parliament had not been in recess at the time of the dissolution of Parliament on March 26, 1979. The election period lasted 57 days. Prime Minister Trudeau’s Liberals won fewer seats than Opposition leader Joe Clark’s Progressive Conservatives in the 31st election. Joe Clark took over as Prime Minister after Trudeau resigned on June 3, 1979 twelve days after the general election. Parliament did not meet until September 10, 140 days after the general election, and 128 days after Joe Clark had become Prime Minister in the minority Parliament. By then a total of 197 days, more than six months, had elapsed since the last meeting of the House of Commons. Prime Minister Joe Clark had governed for more than four months without meeting the House in this minority Parliament to prove he enjoyed its confidence.

Soon after the House met, the Clark government was defeated on a vote of confidence, and the session ended when the 31st Parliament was dissolved on December 12. In the subsequent general election, held on February 18, 1980, 66 days later, former Prime Minister Trudeau won a majority. Thirteen days later, on March 2, Prime Minister Joe Clark resigned and Trudeau became Prime Minister once again. However Trudeau did not meet Parliament until 43 days later, on April 14, 1980. The total period between the last sitting and dissolution of the 31st Parliament on December 12, 1979 and the first sitting of the 32nd on April 14, 1980 was 122 days.

8) The application of the caretaker provisions must be considered in the context of three different sections to the election periods, between the last sitting of one Parliament to the first sitting of the next: One, the period when the House is in recess from adjournment (or prorogation) to the time when the Parliament is dissolved; Two, from the dissolution of one Parliament to the ensuing general election; Three, from the general election to the first meeting of the next Parliament.

Traditionally, one, the period when the House is in recess, has not been considered part of the election period and a government has retained its full powers during it. This period has, however, as the table shows, on occasion been longer than the election period itself. In other words the government has enjoyed its full powers, with the caretaker provisions not in effect, without having to face the House to defend its use of its powers during this period of recess. It is worth considering when, and under what circumstances, this period of recess immediately preceding dissolution should be governed by some version of the election period caretaker rules. At the same time it must be recognized that traditionally it has been accepted that when Parliament is in recess a government that continues to enjoy the confidence of the House continues to function as government in the full sense of the term, with none of the restrictions that might be imposed on a caretaker government during an election period. The caretaker provisions only come into effect when a Parliament is dissolved. An unscrupulous government that knows that it is likely to lose

22 a forthcoming election might want to prolong this period of pre-election recess in order to enjoy the benefits of office for as long as possible.

Two, the election period itself is the obvious period during the caretaker rules should be in force. However, even here Canadian experience shows a lack of consistency. The fact that the rules themselves have been kept secret has been no help in improving public understanding of the mysteries of the processes of parliamentary government, or how the system copes or fails to cope with the uncertainties about which party enjoys the confidence of the House that elections invariably entail. Further, whatever Canadian document exists from all accounts is skimpy and much less thorough than its British counterpart, which, it should be noted, is a public document.

Three, the period between an election and the meeting of the next Parliament can endure a very long time in Canada, especially when there is a change of government, or the result of the election is a minority Parliament. When there is a change of governing party the post-election period has averaged 91 days. When the result is a minority Parliament the post-election period has averaged 83 days. In a very real sense, until a government has met the House and survived a vote of confidence after an election, it has not proven that it enjoys the confidence of the House. It is not clear if, when, or under what conditions the caretaker conventions (or some portion of them) should rule during this often extended post-election period of potential uncertainty when a government retains or assumes power but has not met the House and proven that it enjoys its confidence.

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