Keyword post: Do ministers continue to hold office during an election?

During an election campaign, the ministry continues to hold office until a new ministry is sworn in. There are, however, limitations on what a minister can do during both the election campaign and the period of government formation following a general election. This is commonly referred to as the “caretaker convention”.

The Government of Canada’s Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During an Election provides a good explanation of the caretaker convention. As has been discussed many times on this blog, the government must command the confidence of the legislature at all times. Constitutionally, a government retains full legal authority to govern during an election and has the responsibility to ensure that necessary government activity continues. However, during an election period, a government must exercise restraint in its actions. The reason for that is quite simple – because the legislature has been dissolved for the election, there is no elected chamber to hold the government to account, and the government can’t assume that it could command the confidence of the legislature in the next parliament.

So while a government must exercise restraint during an election period and the transition period following an election, it can and must continue to make decisions and take actions ” where the matter is routine and necessary for the conduct of government business, or where it is urgent, and in the public interest – for example, responding to a natural disaster.”

In some instances, if a major decision might be required, for example due to an emergency situation that arises, it might be necessary for the government to consult with the opposition before proceeding. This would be especially necessary in instances where the decision taken might be controversial or difficult for a new government to reverse.

The Government’s guidelines enumerate the activities to which a government should limit itself during an election campaign. These should be activities which are:

  1. routine; or
  2. non-controversial; or
  3. urgent, and in the public interest; or
  4. reversible by a new government without undue cost or disruption; or
  5. agreed to by the Opposition (in those cases where consultation is appropriate).

For example, such a circumstance occurred in the United Kingdom following the 6 May 2010 general election, which resulted in a hung parliament. On 9 May 2010, at a time when party negotiations to form a new government were still ongoing, the Rt Hon Alistair Darling MP, the incumbent Chancellor of the Exchequer, attended an emergency meeting of the European Council of Finance Ministers in Brussels, called to address financial stability in Europe. At that meeting, the Chancellor agreed to the creation of a new European Financial Stabilisation Mechanism, as part of a comprehensive package of measures to preserve financial stability in the EU, providing for the EU Budget to guarantee EU borrowing to support Member States in need, up to the level of €60 billion. Other commitments reached at the meeting did not involve any financial commitment from the United Kingdom.

However, before attending the meeting, Darling consulted the Rt Hon George Osborne MP and the Rt Hon Vince Cable MP, at the time the Conservative and Liberal Democrat Treasury spokesmen. Darling later explained to a Select Committee: “Whilst there is no formal obligation to consult, I believe it is a matter of courtesy that it was right to ensure that the then Opposition was fully informed”.

Contrast that to the Pearson Airport Agreements which occurred in Canada. In 1993, the Government of Brian Mulroney initiated a project to privatize Terminals 1 and 2 of Pearson International Airport in Toronto against the advice of Air Canada, Canadian Airlines International and the rest of the Canadian airline industry. It was proceeded with against the advice of public servants, and in the face of concerns expressed both openly in Parliament by the Rt. Hon. Jean Chrétien, then leader of the Official Opposition, and privately in correspondence between a Conservative Member of Parliament for Mississauga (where the airport is located) and the Minister of Transport.

Officials negotiating the deal were under great pressure to meet a deadline that was imposed by Prime Minister Mulroney so that the deal could be closed before he left office in June, 1993. Ultimately, the deadline could not be met. The agreements were finally signed in the middle of the election campaign, and at the express direction of the new Prime Minister, the Rt. Hon. Kim Campbell.

Opposition Leader Jean Chretien had repeatedly warned that if the Liberals formed the next government, they would cancel the deal, and that is exactly what happened. As discussed above, the caretaker convention imposes certain restrictions on what a government can do during an election, largely confining it to routine matters. This rule was not observed in the case of the Pearson Airport deal. The signing of the Pearson agreements “was a constitutionally inappropriate exercise of power… [that was] enough to justify whatever steps have to be taken to terminate the agreement.” As the Senate Committee which investigated the matter acknowledged:

These contracts would have established a precedent dangerous to Canada’s democratic process, a precedent whereby a government could conclude controversial agreements during an election campaign — even when it is clear that Government is about to lose. These contracts would have bound the Canadian government to a 57-year lease under terms that, as a matter of responsible business management, were not in the country’s best interest. Furthermore, the privatization of Canada’s largest, busiest and most profitable airport was inconsistent with the stated Government public policy and the policy which was being applied at all other major airports in Canada.

Under the caretaker convention, a government cannot take actions which are controversial (which the Pearson deal was), which binds a future government, or that will entail significant costs to reverse. Therefore the decision taken by the new Liberal Government to cancel the Pearson Airport Agreements was entirely justified.

 

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