Ministerial Error and the Political Process: Is There a Duty to Resign? Stuart James Whitley
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Ministerial Error and the Political Process: Is there a Duty to Resign? Stuart James Whitley, QC* In practice, it is seldom very hard to do one’s duty when one knows what it is. But it is sometimes exceedingly difficult to find this out. - Samuel Butler (1912) “First Principles” Note Books The honourable leader is engaged continuously in the searching of his (sic) duty. Because he is practicing the most powerful and most dangerous of the arts affecting, however humbly, the quality of life and the human search for meaning, he ought to have – if honourable, he has to have – an obsession with duty. What are his responsibilities? -Christopher Hodgkinson (1983) The Philosophy of Leadership Abstract: This article examines the nature of the duty to resign for error in the ministerial function. It examines the question of resignation as a democratic safeguard and a reflection of a sense of honour among those who govern. It concludes that there is a duty to resign for misleading Parliament, for serious personal misbehaviour, for a breach of collective responsibility, for serious mismanagement of the department for which they are responsible, and for violations of the rule of law. The obligation is owed generally to Parliament, and specifically to the Prime Minister, who has the constitutional authority in any event to dismiss a minister. The nature of the obligation is a constitutional convention, which can only be enforced by political action, though a breach of the rule of law is reviewable in the courts and may effectively disable a minister. There appears to be uneven historical support for the notion that ministerial responsibility includes the duty to resign for the errors of officials except in very narrow circumstances. * The author is a lawyer, author and law teacher. He has served at the deputy minister level of government for more than five years. This article was researched and written with the generous support of the Sheldon Chumir Foundation for Ethics in Leadership. Based in Calgary, the Foundation seeks to promote community-minded action in public life by providing a forum for informed discussion of the ethical dimensions of important Introduction: Responsible Government, Statesmanship and Authority What makes power hold good, what makes it accepted, is simply the fact that it doesn’t always weigh on us as a force that says ‘no’, but that it traverses and produces discourse. It needs to be considered as a productive network which runs through the whole social body, much more than as a negative instance whose function is repression. - Michel Foucault (1977) Power & Knowledge (Selected Interviews) Responsible government by its own terms expresses a moral condition. In ordinary use, the word ‘responsible’ means the agreement, whether spoken or otherwise, by which someone accepts the blame or credit for something. Its original connotation meant ‘correspondent’ in the sense of ‘relating to’. In the last two hundred years or so it has come to mean something more significant in the sense of an earlier congregation of words such as ‘duty’, ‘virtue’, ‘goodness’, ‘morality’, and ‘law’. Being responsible is equated with noble or honourable conduct.1 A failure to accept responsibility in politics frequently has Opposition parties and the media crying for the resignation of the Minister responsible. A duty to resign for serious error is a persistent theme – one is tempted to say ‘myth’ - in Canadian politics, as it is in Britain.2 Whether a Minister of government has a duty to resign in circumstances in which blame can be assigned as a matter of constitutional law, convention, or fact is the object of this inquiry. public issues. It was created by a bequest by Sheldon M. Chumir (1940-1992), Rhodes Scholar, lawyer, civil libertarian and MLA (1986-1992). 1 See for example: Hakawaya, S.I. A Modern Guide to Synonyms and Related Words, Funk & Wagnalls: Montreal (1968) at p.509. 2 “Civil servants are not themselves supposed to speak concerning their work; they must remain anonymous; and when praise or blame is apportioned, it must fall on the Minister who should in cases of serious error resign like an officer and a 2 It has been observed that the idea of responsibility has several components: the idea of a ‘response’ to a particular situation, which is based upon an interpreted understanding of it, as well as the anticipated reaction to it. These occur within a context of consistent expectations, which Niebuhr refers to as ‘social solidarity’: Our action is responsible, it appears, when it is a response to an action upon us in a continuing discourse or interaction among beings forming a continuous society … it implies … a relatively consistent scheme of interpretations.3 Responsibility in political discourse may be understood in the context of Canadian society, which is of course a product of its life and experience. In the examination of whether there is a duty to resign for Ministers of government, one is bound to examine the origins of political duty as well as the relationship of government to the democratic society that exists in Canada presently. Apart from the need to ensure continuing public confidence – about which more will be considered later – there is a expectation upon those entrusted with governing to exercise statesmanship. Statesmanship has a technical sense, in which the mechanics of government are understood and applied. But the expression bears a broader meaning importing a quality of moral conduct. This is what is meant when one speaks of ‘the public trust’: those to whom the business of the state has been consigned will dispense those responsibilities in a virtuous way, respectful of the written and unwritten rules that exist to reinforce integrity in office. The exercise of authority can only function effectively in an atmosphere of trust. In the technical or vocational sense, the trust component is less important. But where authority operates within a larger continuous scheme of interpersonal gentleman…(emphasis added).” Kingdom, John Government and Politics in Great Britain (1994) Cambridge Press: Oxford, at p. 369. 3 Niebuhr, R. “The Meaning of Responsibility”, in The Responsible Self (1963) Harper & Row: New York, at p. 47. 3 relationships – as it must in a free and democratic society - a trust process is engaged that underpins public confidence. Statesmanship, then, ...includes all of the generally accepted moral principles of the state. No statesman can disregard any one of these laws and conventions with impunity. Arrogant disdain for them or violation of them denotes a failure to appreciate reality which sooner or later has to be paid for. Pertinent action will conform with these laws and conventions; its observance of them will not merely be hypocritical, but it will regard them as an essential element in all order; it will acknowledge and turn to advantage the wisdom of these conventions which has been achieved through the wisdom of many generations. (emphasis added)4 Put another way, deference to expectations created by historic practice strengthens commitment to democracy and deference to the rule of law. It may not be enough to say: ‘I broke no law’. It may be additionally required to say: ‘A wrong has been done, and I am responsible.’5 But does it follow that resignation from office is the proper course? Does ‘responsible government include a convention of resignation for directly (or indirectly) attributable errors of a Minister? There is a narrow view of responsible government that is grounded in the mechanical processes of representative governance – a ministry, for example, owes its existence to the majority of the members of the House of Commons. It follows that the Commons may dismiss a ministry. This is a convention, which in theory ensures the “accountability of the executive to itself and ultimately to the 4 Bonhoeffer, Dietrich “The Structure of a Responsible Life” Ethics (1965) McMillan: New York, at p. 236 (emphasis added) 5 “…a morally responsible person … is one who does accept responsibility, who shows the concern of responsibility …(w)hen at last he comes to act consistently like a responsible person, then he is one, and only then.” Fingarette, H. On Responsibility (1967) Basic Books: New York, at p. 39. 4 Canadian people”.6 A more expansive interpretation was expressed in terms of requiring Ministerial control over departments in such a way as to be held responsible by the House.7 This is a step toward seeing responsible government as an organizing principle for executive-legislative relations,8 however, an earlier conception – that of John Locke – held that the legislature must accept certain restraints, all of them implicit or explicit in the original contract establishing the political system.9 Responsible government is explained not just as an organizing principle but as an animating one as well. British tradition in Canada had until 1982 established parliamentary sovereignty and majority rule as the dominant streams of governance, rather than the American model of formal checks and balances which is heavily reliant on judicial review. With the advent of the Canadian Charter of Rights and Freedoms, the courts became a more significant partner in the supervision of Parliament’s powers. But the Charter was not an inceptive document; it joined the constitutional arrangements of a country in existence as a separate polity for more than one hundred years. All of the British statute and common law to 1867 and parliamentary practices that have reinforced the limitation on the Sovereign’s power, have been a part of the Canadian political reality, even as Canada has steered its own way. Practices and customs, collectively known as ‘conventions’, are an essential part of the fabric of Canadian democracy. Their observance is not merely a nod to historic courtesy, but symbolic evidence that democratic principles properly understood in this country continue to thrive.