Conduct during elections: The principle of ‘restraint’
During federal elections, the fair city of Ottawa experiences an uncharacteristic tranquility, just as the rest of the country contends with intensified political noise. It’s not simply that the politicians have gone on the road (thank heaven for small mercies), but also that the government is doing a lot less than usual (ditto, perhaps). For as soon as “the writ is dropped,” both the ministry and the public service are, by longstanding convention, constrained in what they can do.
The convention of restraint
You’ll hear this practice variously described, the terms “caretaker convention” and “convention of restraint” being the most common. I would argue that convention of restraint is generally the more accurate term, and that “caretaker,” in its strictest sense, describes a government that’s already lost an election.
Attentive students of electoral history will discover that this is one area where theory is reasonably well respected in practice, with only occasional faux pas to mar the record. In fact, they’ll discover that the scope of restraint has, if anything, intensified over the decades. Moreover, for some years now, the government has provided election-conduct guidelines for ministers, their staff, and public servants, which it made public for the first time in 2015.
In very broad terms, there are two drivers of ministerial restraint during elections:
First, in our system, the executive must always be accountable to the legislature. Once Parliament has voted no confidence or has been dissolved, this accountability relationship has ceased to operate.
Second, the resources of the state (including the public service) are not to be used for partisan purposes. This is an especially important principle for the incumbent in a democratic system.
In addition to the responsibilities of elected officials, public servants have a responsibility in their own right to remain politically neutral — at least to the extent necessary to credibly discharge their responsibilities to governments of whatever political stripe. This responsibility is now governed by legislation and administered by the Public Service Commission, as discussed below.
How much restraint?
What is the scope of this restraint? There are multiple characterizations, but it boils down to this: In matters of policy, expenditure, and appointments, the government should restrict itself to necessary business — necessary either because it’s routine (such as operating public infrastructure, paying bills, and maintaining normal public services), or because it’s urgent (such as dealing with a natural disaster or comparable crisis). In the latter case, the government should still avoid making decisions that are controversial, or that would be difficult for a successor government to reverse. In such cases, consultations with the other party leaders would likely be in order.
Of course, there are lots of grey areas. Is it necessary for ministers to withdraw from pre-scheduled international conferences? It depends. One consideration would be whether it could be perceived as exploiting incumbency for political publicity. Should all appointments cease? I would argue there’s no reason to stop the routine appointment of career public servants to senior foreign postings. And questions are often raised about decisions made before an election call that haven’t yet been implemented. In practice, governments have been increasingly inclined to keep official business to a minimum and focus on election campaigning. For example, cabinet and its committees seldom meet during an election, functional meetings of the Treasury Board being an understandable exception.
In navigating through all this, it’s important to remember that we’re talking about a constitutional, or at least a political, convention. Legally, a government retains full authority to govern until such time as a new ministry is sworn in. No court would reverse an executive action only because it violated the restraint principle. However, the role of the Governor General is a bit subtler. For instance, constitutional scholars defend governor general Aberdeen’s refusal in 1896 to make appointments recommended by the defeated Charles Tupper (whom he really disliked) shortly before the transition to the ministry of Wilfrid Laurier. It would thus seem that a governor general isn’t necessarily bound by the advice of a prime minister who has lost the confidence of the House or been defeated in an election.
Using government resources
While broad government action is the subject of convention, in certain important areas, restraint is mandated by formal policy or law. For example, the principle that government of Canada resources (including the work of public servants) may not be used for partisan purposes is manifest in a range of Treasury Board policies, as well as legislation. Government departments, led by the Privy Council Office, typically place tight and explicit limits on the material (as in, how many cellphones) and personnel support available to ministers for conducting official government business during elections. It’s generally accepted that communications support such as speechwriting requires extra vigilance.
For the most part, ministerial staffers abandon their offices to go on the hustings. This is entirely appropriate, provided they take a leave of absence without pay — the basic rule being to do these things on the staffer’s own time and the party’s money.
Parliamentarians, as such, aren’t part of the government, even when they’re members of the government caucus. It’s worth noting, though, that members of Parliament actually lose their status when Parliament is dissolved. Lest you worry how they’ll pay their bills, take comfort that the Parliament of Canada Act enables them to collect their salaries for the duration of the election. And, in practice, they still attend to the interests of their constituents. And in case you’re wondering how the government pays its bills when the House isn’t there to vote supply (known to most of us as “money”), this is provided via an executive instrument known as governor general’s special warrants, which enable the president of the Treasury Board to spend public money without parliamentary appropriation during urgent situations such as elections. Unfortunately for governments that would rather not contend with the House, these warrants can only run until 60 days after the return of the writ.
Public servants: political neutrality and the law
Public servants are required by longstanding principle to discharge their duties without political partisanship, reflecting the Westminster tenet that the public service should be able to credibly serve successive governments, whatever their political orientation. The requirements of political neutrality are enshrined and reinforced by the Values and Ethics Code for the Public Sector, which is a Treasury Board policy mandated by, and closely linked to, the operation of the Public Sector Disclosure Protection Act.
That said, in an electoral context, the activities of public servants are governed principally by the Public Service Employment Act(PSEA), administered by the Public Service Commission (PSC). This legislation seeks to balance — as the Supreme Court has said must be done — the requirement of political neutrality against the basic democratic right of public servants to participate in the political process. The driving principle is that any political activity must not impede the capacity of the public servant to discharge his or her responsibilities. Accordingly, what is permitted depends on the circumstances, taking into account both the nature of the political activity and the public servant’s responsibilities. Political activity is defined in the PSEA to encompass everything from voting, to putting a sign on your lawn, to contributing to a party, to running in an election. If you’re a deputy head, it’s easy to figure out what political activities are permissible: absolutely none, except casting your ballot. But individuals whose roles are lower profile and less politically sensitive — for example, those with exclusively technical responsibilities — may be permitted much more leeway, up to and including running for political office. How do you know what’s permitted for you? You can try reading the legislation yourself, but, if in doubt, you have only to contact the PSC for authoritative guidance.
The principles governing the activities of governments and officials, though multi-faceted, are well-established, and have remained largely unchanged over the years. That said, successive governments and public-service leaders have applied them with varying degrees of stringency. In one recent election, the public-service leadership was criticized for going too far, as public servants cancelled everything from routine meetings to attendance at professional seminars. The approach for Election 2021 remains to be seen, but my guess is that the goal will be to remain beyond reproach, which, presumably, includes adhering to the dictates of common sense.
Karl Salgo is the executive director of public governance at the Institute on Governance. The IOG is offering three writ-period courses for anyone wanting to deep-dive into the caretaker convention, government transitions, and mandate-letter writing. Visit www.iog.ca for details or to enrol.
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