Ministers of State are cabinet ministers — if the PM wants them to be
After a review of the Orders in Council published in the aftermath of the swearing-in of Prime Minister Justin Trudeau’s new cabinet, some commentators discovered that, in fact, some ministers had been appointed as Ministers of State and concluded that therefore, these were not the “full cabinet ministers” the PM said they were.
While it’s true that, in technical terms, some ministers were appointed as Ministers of State under the Ministries and Ministers of State Act, the criticisms were wrong. They are “full cabinet ministers”.
Here’s the short answer: Cabinet is a political forum independent of its members’ legal status within their ministries. If the prime minister considers all his ministers to be full ministers and members of Cabinet, then that’s what they are. Cabinet is the forum where ministers — whatever their formal status in terms of the law or the bureaucracy — come together to make collective decisions. The real issue is whether they actually meet, deliberate and decide collectively — not their formal relationship with the bureaucracy. The fact that, from a formal or legal point of view, some may be “only” Ministers of State can mean there are limits to their direct authority over the public service — but even that authority can be boosted through delegation or transfer of authority, as has been done in the past.
At the risk of getting hung up on the legalities, let’s take a closer look. The appointment of “full” ministers is constrained by the Salaries Act, which lists positions for which a minister’s salary may be paid. If we exclude the ministers for regional development agencies (currently under the authority of the minister of Innovation, Science and Economic Development), the leader of the government in the Senate (a position that remains empty) and the associate minister of National Defence (now occupied by the minister of Veterans Affairs), that leaves the prime minister with 26 ministerial positions to fill, including that of president of the Queen’s Privy Council for Canada.
Salary is an important measure of equality — equal pay for equal work — but what’s more important here is that the prime ministerial has decided there will be no senior-junior hierarchy in this cabinet.
I note in passing that no minister now bears the title of president of the Queen’s Privy Council, but it’s likely that the formal appointment was made. I would venture to say this is probably the formal legal title of the minister of Democratic Institutions, a ministerial position very much like that of the president of the Queen’s Privy Council. Also, there are Orders-in-Council designating the president of the Queen’s Privy Council for Canada as minister responsible for electoral legislation and for the Office of the Chief Electoral Officer under the Financial Administration Act. These clues all point in the same direction.
All this is merely to say that Prime Minister Trudeau has a cabinet of 30 ministers and only 26 ministerial positions to fill. This is when the PM resorts to the Ministries and Ministers of State Act.
Under that Act, a minister (of State) may:
- be appointed to assist any minister having responsibilities for any department or other portion of the federal public administration in the carrying out of those responsibilities;
- exercise or perform such of the powers, duties or functions as may be assigned or transferred to him pursuant to any Act of Parliament, and;
- make use of the services and facilities of the department or portion of the federal public administration concerned.
This is the vehicle by which the prime minister may appoint other ministers to carry out the duties and functions he determines, and provide authority and bureaucratic support to them. Authority may be delegated by the minister responsible for the department, or by transfer of authority pursuant to an act of Parliament.
Past prime ministers used this Act to name junior ministers to assist their ministries, with a salary differential of $20,000 to reflect their “junior” status. The law does not require that salary gap; it’s a matter for the prime minister to decide and the Treasury Board to implement.
Prime Minister Trudeau simply decided not to have Ministers of State in his cabinet. The PMO has already stated that the usual salary gap would not exist in the current cabinet. Salary is an important measure of equality — equal pay for equal work — but what’s more important here is that the prime ministerial has decided there will be no senior-junior hierarchy in this cabinet. Ministers will be judged on their performance rather than their status.
Maryantonett Flumian is the president of the Institute on Governance and a former long-serving federal deputy minister.