(Update 05/08/2011: Blogger James Bowden acquired a copy of the Canadian Government’s caretaker convention following an Access to Information request. You can access it here (PDF). He has also acquired a copy of the Manual of Official Procedure of the Government of Canada, which you can download from his site.)
The Toronto Star carried an interesting article about the existence of “an actual handbook setting out the terms of a caretaker government” which for unknown reasons, the Privy Council Office won’t make public.
In Canada, during an election campaign, the Prime Minister is still technically the PM and ministers retain most of their powers until a new government is sworn in following the outcome of the election. This period is referred to as a “caretaker government”. There are limits, however, on what the PM and ministers can do during this period, which former Clerk of the Privy Council Alex Himelfarb summarises this way:
“Do not do anything that would give you political advantage by virtue of being the government and do not make commitments that will constrain the government that is eventually elected.”
Why this handbook is being kept secret is puzzling. As the Star article explains:
the guidelines are kept under lock and key by the Privy Council Office, and not widely known even within government.
The existence of the caretaker’s guidelines only became more widely known a couple of months ago, when [Peter] Russell organized a workshop in Toronto, dedicated to setting down some guidelines for how to proceed in the case of an unclear election result.
Though Russell and other participants in the workshop had been studying Canadian government for a long time, it was the first that many had heard of an actual “Manual of Official Procedure of the Government of Canada,” which dates back to 1968, the same year that Pierre Trudeau came to office.
When I blogged back in February about the UK House of Commons Select Committee report Lessons from the process of Government formation after the 2010 General Election, I skipped over one section of the report because, at the time, it was of less interest to me. However, it related directly to this issue, and may be of interest to others, even if the UK rules and conventions won’t be identical to the Canadian conventions. But since we have no way of knowing what the Canadian guidelines are, this might be better than nothing.
Section 5 of that report deals with the pre- and post-election activity of governments.
First important difference, terminology. In the UK, the term “purdah” is used to describe the convention that government activity is subject to restrictions during an election campaign. These restrictions are described thusly:
…it is customary for Ministers to observe discretion in initiating any new action of a continuing or long-term character. Decisions on matters of policy on which a new Government might be expected to want the opportunity to take a different view from the present Government should be postponed until after the Election, provided that such postponement would not be detrimental to the national interest or wasteful of public money. (From the General Election Guidance issued to civil servants before the 2010 general election and published by the Cabinet Office)
There are similar restrictions on public appointments and communication activities.
During the previous Parliament, the Justice Committee was reviewing the matter and made extensive recommendations in this area. Most notably, the Committee found that:
“the term ‘caretaker’ is clearer and more meaningful than ‘purdah’ and should be used in formal guidance”. In fact ‘purdah’ traditionally refers to restrictions on government announcements, and ‘caretaker’ has been used to describe restrictions on other government activity, and so to use ‘caretaker’ to describe both would be misleading.The Cabinet Secretary [Sir Gus O'Donnell] also raised objections to the term ‘caretaker’ in written evidence. The December 2010 Cabinet Manual refers to “restrictions on government activity”, which seems to us to be clear, accurate and easily understood.
This draft Cabinet Manual is an initiative launched by Gordon Brown when he was PM and was intended to be “the first, comprehensive account of the workings of Cabinet Government [which] will consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.” On 14 December 2010, the Cabinet Office published the draft manual for consultation (with the deadline for comments being 8 March 2011).
Quite the contrast – the Canadian manual is top secret, kept under lock and key, the UK puts the draft of its manual up for public input and consultation.
The current draft version of the Cabinet Manual has this to say about pre- and post-election activity (from pp. 32-33 of the Draft Cabinet Manual):
Government activity between the announcement of an election and polling day
68. When an election is called, the Cabinet Office publishes guidance on activities in the pre-election period. The Prime Minister writes to ministers in similar terms. The pre-election period starts on the day the election is announced. The guidance to government departments issued in 2010 is available here (PDF).
69. During this period, the Government retains its responsibility to govern and ministers remain in charge of their departments. Essential business is carried on, which may include meetings of Cabinet or Cabinet committees as required. Ministers continue in office but must observe discretion in initiating any action or making any commitment of a continuing or long-term character once the election has been announced. This means the deferral of activity such as: taking or announcing major policy decisions; entering into large/contentious procurement contracts or significant long-term commitments; and making some senior public appointments and approving Senior Civil Service appointments, provided that such postponement would not be detrimental to the national interest or wasteful of public money. If decisions cannot wait, they should, where possible, be handled by temporary arrangements or consultation with the relevant opposition spokesperson.
Activity post election
70. Immediately following an election, if there is no overall majority, for as long as there is significant doubt over the Government’s ability to command the confidence of the House of Commons, many of the restrictions set out at paragraphs 68 and 69 would continue to apply. However, while avoiding long-term commitments, the Government would be able to announce its policy intentions – including policies it might hope to include in the Queen?s Speech – since restrictions on announcements that would be inappropriate during an election campaign need no longer apply. The point at which the restrictions on financial and other commitments should come to an end depends on circumstances but may often be either when a new Prime Minister is appointed by the Sovereign or where a government?s ability to command the confidence of the Commons has been tested in the House of Commons.
The Political and Constitutional Reform Committee had some concerns with paragraph 70 above. Where the Cabinet Manual states that following a hung parliament where a Government’s ability to command the confidence of the House is in doubt, it should still be allowed to announce policy intentions, including those it might include in a Speech from Throne, the Committee worried that “announcements by the Government in such circumstances could be used to party-political advantage”. In fact, the Committee felt that if anything, “the restrictions on government activity should be more stringent and limit a government to only its day-to-day running and urgent and essential decisions”. Consequently, the Committee recommended in its report that the Cabinet Manual be amended to:
a) reflect that restrictions on public announcements apply not only in the weeks before an election but also in situations where there is doubt as to who can command the confidence of the House of Commons; and
b) make clear that the restrictions which apply to government activity where there is doubt as to who can command the confidence of the House of Commons are more stringent than those which apply to government activity before an election.
For anyone interested in this issue, Section 5 of the Committee report is worth looking at. It provides actual examples of how these restrictions work in practice, as well as addressing other issues such as pre-election contact between the civil service and opposition politicians. As stated above, the Canadian rules might not be identical, but since they’re not public, this at least provides an interesting discussion of the matter.