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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. © 2012, Public Policy Forum 1405-130 Albert St. Ottawa, ON K1P 5G4 Tel: (613) 238-7160 Fax: (613) 238-7990 www.ppforum.ca 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 1 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. 2 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.

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