Building Better Government. 2011, Public Policy Forum Albert St Ottawa ON K1P 5G4 Tel: (613) Fax : (613)

Transcription

1 Gov e r nme ntf or ma t i oni nca na da Ot t a waroundt a bl e Ma r c h21, 2011

2 Public Policy Forum Building Better Government The Public Policy Forum is an independent, not-for-profit organization dedicated to improving the quality of government in Canada through enhanced dialogue among the public, private and voluntary sectors. The Forum s members, drawn from business, federal, provincial and territorial governments, the voluntary sector and organized labour, share a belief that an efficient and effective public service is important in ensuring Canada s competitiveness abroad and quality of life at home. Established in 1987, the Forum has earned a reputation as a trusted, nonpartisan facilitator, capable of bringing together a wide range of stakeholders in productive dialogue. Its research program provides a neutral base to inform collective decision making. By promoting informationsharing and greater links between governments and other sectors, the Forum helps ensure public policy in our country is dynamic, coordinated and responsive to future challenges and opportunities. 2011, Public Policy Forum Albert St Ottawa ON K1P 5G4 Tel: (613) Fax : (613) ISBN:

3 Acknowledgements I wish to acknowledge and thank our roundtable participants for providing much needed insight into the challenges facing the public service, political parties, the Crown, media and the public during periods of transition and government formation. This report is our attempt to capture the advice and recommendations of the discussion, and to help initiate the process of establishing guidelines that clearly outline the rules and responsibilities of the stakeholders involved in forming governments in Canada. I especially want to thank my colleagues at the Public Policy Forum for their work on this important project, including James McLean for helping to organize the March 21 st roundtable and for drafting this report. Ryan Conway and Mary-Rose Brown provided research support and overall coordination. I also want to note the contributions of Julie Cafley, Vice-President, for her oversight of this project. In releasing this report and initiating a dialogue on government formation, the Public Policy Forum remains true to its mission of creating a safe space facilitating open and frank dialogue among leaders from all sectors on governance in Canada. All individuals and groups who work to bring clarity to government policies and processes should be applauded and encouraged. David J. Mitchell President and CEO Public Policy Forum

4 Government Formation in Canada Contents Introduction... 1 The Role of the Public Service... 2 Points of Consensus... 3 Role of the Crown and Executive... 4 Points of Consensus... 6 The Role of the Media... 6 Points of Consensus... 7 Conclusion... 9 Roundtable Participants Appendix

5 Introduction Canada is now entering its seventh consecutive year of minority parliaments. Conventional wisdom holds that this trend may continue. We are left to wonder, however, if there is a means to make minority parliaments function more effectively, particularly during periods of government formation. The rules pertaining to government formation, particularly in minority parliaments, have not been codified in Canada. Instead, government formation under such circumstances often hinges on political interpretations of tradition and convention, rather than formally established and well understood practices. As part of our work to help build better governments, the Public Policy Forum convened a dozen constitutional and policy experts for a roundtable session in Ottawa on March 21, 2011 to discuss how governments form, particularly in minority situations, and what guidelines might be useful for governments, political parties, the public service, media and public to be aware of under such circumstances. All roundtable participants agreed on the timely nature of this dialogue and stressed the importance of establishing clear and flexible rules in the form of publicly-accessible guidelines that would help to inform and guide key stakeholders. This summary report presents the main discussion points and outlines some key themes that need to be addressed during periods of government formation. In particular, we focused on the following: The Role of the Public Service The Crown and the Executive The Role of the Media Our aim is to advance a common understanding of the important principles and issues that Canadians should understand about the functioning of government under circumstances that have sometimes lacked clarity. Recent election outcomes in other countries with Westminster-style governments seem to indicate that the traditional means of government formation in Canada may be in need of renewal or, at least, reconsideration. This initiative was inspired in part by the seminal work of the Institute for Government and the Constitution Unit at University College London, whose report, Making Minority Government Work: Hung parliaments and the challenges for Westminster and Whitehall, makes practical recommendations that helped guide the process leading to the recent formation of the UK coalition government. The Public Policy Forum has also drawn inspiration from a more recent report issued by the David Asper Centre for Constitutional Rights at the University of Toronto, Adjusting to a New Era of Parliamentary Government, emanating from a February 2011 workshop. 1

6 The Role of the Public Service The public service is obviously very engaged during periods of transition and government formation. Currently, policies and procedures that are relevant to government formation are spread across different departments or areas of responsibility and kept from public view. As the senior-most leader in the public service, the Clerk of the Privy Council must have a clear understanding of the rules, expectations and responsibilities of all participants in the process of government formation. Indeed, the Clerk is uniquely situated to provide the discipline of our system of governance. To illustrate this point, roundtable participants posed a series of questions regarding the role of the Clerk of the Privy Council. These questions, which require clarity, include: Should the Clerk, with approval of the Prime Minister, brief opposition leaders on key issues before and during election campaigns? Should the Clerk offer a letter of resignation after the installation of a new government in order to avoid the appearance of a conflict of interest? What is the role of the Clerk in ensuring that the caretaker convention is observed? How can the Clerk enforce this convention during a referendum, or crisis? Roundtable participants agreed that publicly-accessible guidelines are needed both to inform the Clerk of the Privy Council and also to guide all of the major stakeholders involved in government formation. Some participants also expressed concern about how the lack of communication between the public service and opposition leaders has contributed to an environment of mistrust. Since the 1990s, there has been a growing gulf between Deputy Ministers and opposition party leaders, as there are few acceptable or effective means of communication between parliamentarians and the public service. The lack of trust between the public service and political leaders could also have implications for the Clerk of the Privy Council who is expected to carry out four distinctive roles: Deputy Minister to the Prime Minister; Secretary to Cabinet; Head of the Public Service, and; Custodian of the Constitution. According to one participant, the Clerk s role as Deputy Minister to the Prime Minister is increasingly being viewed as a potential conflict with the role of non-partisan advisor. If the Clerk is seen to be primarily serving the Deputy role, then this may compromise the credibility required as the independent Head of the Public Service and Custodian of the Constitution. Furthermore, there is no set of guidelines to clearly determine which of the Clerk s roles should be given primacy in situations where duties may conflict. According to one roundtable participant, this issue has become the Clerk s central dilemma and must be resolved in order to avoid confusion during periods of government formation. The challenges that face the Clerk and federal public service during periods of government transition and formation, are also shared by their provincial government counterparts. Similar to the Clerk of the Privy Council, provincial Secretaries to Cabinet also face tension between their role as advisor to the premier and their responsibilities to lead the public service. They have no standardized process to communicate with opposition leaders, and do not have access to guidelines that clearly document the important roles and responsibilities for each of the major stakeholders at the provincial level. 2

7 Points of Consensus 1. Create a publicly-accessible set of guidelines that clearly define the rules and responsibilities of key stakeholders during periods of transition and government formation. There is a pressing need to clearly articulate rules and responsibilities during periods of government formation. Roundtable participants agreed that such guidelines should present the main principles that will apply when governments are formed. It was also agreed that these rules should retain a necessary level of flexibility in their application. The guidelines should be similar in their level of flexibility to the cabinet manuals of New Zealand and the United Kingdom. The codification of guidelines would help ensure that consistent practices are applied across governments, irrespective of the party in power. There is also a need to distinguish among the range of potential scenarios and the impacts each has on government formation. Finally, the guidelines should be released publicly so that the public service, political parties, the media and the public will share a common understanding and have clear expectations of the procedures during periods of government formation. 2. Develop better communication among the main stakeholders In the United Kingdom, senior members of the public service met with opposition leaders to establish a real dialogue and discuss important issues in the months leading to the 2010 election. This type of dialogue has at times occurred in Canada. In 2000, the Clerk of the Privy Council was authorized to brief the Opposition Leader on important issues on the eve of the election. While this practice has not been consistent in Canada, participants suggested that discussions between senior public servants and opposition leaders should occur on important issues, such as national security. As a point of reference, the UK-based Institute for Government created a program designed to educate an opposition party s shadow ministers on key portfolio issues. Canada also lags behind the United States in terms of establishing teams and processes to ensure effective government transitions. Working together with senior public servants, there is a need to establish such teams in order to ensure smooth transitions and effective formations of governments. 3. The Clerk of the Privy Council should play a challenge function to the Prime Minister The Clerk is obligated to advise the Prime Minister on policy and operational issues in an objective and professional manner. It is important that the Clerk challenges ministers thinking and presents different scenarios and solutions when assisting with the process of government formation. As the Head of the Public Service, the Clerk should also be responsible for ensuring that the Prime Minister understands both the needs of, and major issues within, each portfolio. 3

8 4. Current guidelines should be made public Written guidelines do exist concerning government transition and formation. However, unlike other major Westminster-style governments, in Canada these documents are shrouded in secrecy and kept from all but a few senior officials. These documents should be reviewed, consolidated and made public, consistent with good governance today. Role of the Crown and Executive Following the prorogation of Parliament in 2008, which was surrounded by confusion and competing interpretations of our constitutional conventions, many Canadians realized that there is a lack of consensus on some of the fundamental principles of government formation in our country. Confusion about the role of the Crown and Executive and the application of convention persists among some stakeholders in our system of governance. In an effort to remove this uncertainty, previous Governors General have supported efforts to take these conventions out of our collective memories and put them in a codified format, recommending that the role of the Crown in government formation should be clarified and limited. Roundtable participants supported these efforts and suggested that the most effective way of limiting interventions from the Crown is to draft a set of guidelines explaining the roles of each major stakeholder in government formation. Participants noted that the Governor General does not have the legitimacy that comes with being popularly elected and that parliamentary leaders have the prime responsibility for sorting out which party or combination of parties can form a government that can command the confidence of the House of Commons. The policies and actions that are available to the Executive during periods of government formation and transition also need to be better defined. Roundtable participants cited the caretaker convention as a key example of an important principle that has been unevenly applied when forming governments. Under this convention, the government of the day should refrain from taking significant decisions related to matters such as policy, spending or appointments when it is unclear whether the government enjoys the confidence of the House of Commons. Given that the convention is not clearly codified, there is no penalty for any government that breaches this important convention. Roundtable participants agreed that there is a lack of consistency in the application of this principle, creating a traditionally weak caretaker convention in Canada. To provide clarity on what is and is not permissible under the caretaker convention, the civil services of other Westminster countries, including New Zealand, Australia, and the UK, publish official documents codifying the rules associated with the caretaker convention and when it applies. Roundtable participants suggested that guidelines should be created to define both the parameters of the convention and how it might be applied in the Canadian context. For example, clarity could be provided on the role of a caretaker government, including the types of policies and actions that should be avoided so as not to bind the hands of a new government. One participant also suggested that guidelines could require the Prime Minister to announce when the caretaker convention will not be observed. 4

9 The period of time between dissolution of the house and an election, as well as the time between the election and the next meeting of the house (especially if the election has returned a minority parliament) may also require the application of the caretaker convention. Recent research suggests that the average number of days that pass in Canada between the dissolution of Parliament and first sitting is During these long periods, questions of legitimacy may arise, as the government is unable to demonstrate that it has the confidence of the House. In the United Kingdom, by contrast, this duration lasts for an average of 17 working days (or 4 weeks), including the few days required for government transition. Rules may also be needed where necessary to expeditiously convene Parliament following an election. Roundtable participants also noted that the caretaker convention does and should vary in its application. It would fall on the Clerk of the Privy Council, as the most senior public servant with special responsibility for advising and informing the government of the day on constitutional conventions and practices, to ensure that the caretaker convention is observed. For instance, in cases of a national emergency requiring an immediate governmental response, a caretaker government can take action, but is expected to do so in consultation with the Official Opposition. Another matter discussed by roundtable participants was the issue of whether Parliament should have greater control over confidence votes. Without a better understanding of the rules governing confidence, key stakeholders are unable to determine whether the government has the unilateral authority to proclaim matters of confidence. Are confidence votes used too sparingly or too freely? Some roundtable participants suggested that too often trivial votes are declared matters of confidence, and that giving Parliament more authority may limit this practice. Others suggested that the government needs to retain the right to define what is and what is not a confidence motion. For example, the issue may be central to the government s policy agenda. Despite this difference of opinion, all roundtable participants agreed that clarity is needed. 1 A detailed summary of this research, conducted by Professor C.E.S. Franks, of Queen s University, can be found in Appendix 1. 5

10 Points of Consensus 1. The Governor General s role in Government Formation Roundtable participants agreed that Canada should follow the UK model by giving our Head of State a minimalist role, making the role of the Governor General in government formation nominal and informal. During a situation where a newly elected government is defeated on a confidence vote, the Governor General should retain the right to determine whether another election can be avoided. All of the participants support the view that the Governor General may refuse a prime minister s request for dissolution if there is reason to believe the Leader of the Opposition can form a government that will have the confidence of the House. 2. The Executive s role in Government Formation Guidelines are needed to clearly articulate the rules and conventions that direct the Executive during periods of government transition and formation. Roundtable participants agreed that these guidelines should include the main principles of relevant conventions, including the caretaker convention, in order to ensure transparency and clarity when governments are formed. New conventions, including a rule that requires Parliament to reconvene after a specific amount of time, should also be considered. 3. Parliament should meet within a prescribed period of time following an election Given the often lengthy periods between the dissolution of Parliament and first sitting, guidelines should be considered that would have Parliament convene within a prescribed period of time following an election. Standards that are followed in other Westminster democracies, such as in the United Kingdom, might serve as a useful reference. 4. Rules on confidence votes should not be included in government formation guidelines Confidence votes are the domain of Parliament. Currently, there is much disagreement over the rules and nature of confidence votes. A member of the roundtable suggested that determining what constitutes a confidence vote should continue to be the right of the government. The Role of the Media During the debates over the proposed constitutional accords of the 1990s, journalists were required to have an advanced understanding of Canada s constitution and the significant issues under discussion. Over the last two decades however, the media has shifted its focus from covering significant issues of national importance to reporting primarily on day-to-day news stories. Generational change has also resulted in far less attention to, and knowledge of, fundamental issues of the functioning of our parliamentary democracy among journalists. 6

11 According to roundtable participants, this shift in focus has been precipitated by two changes. First, a fundamental weakness has developed in the Parliamentary Press Gallery due to a significant turnover in personnel. This rotation process means that journalists often lack institutional memory, take longer to learn about important governance processes, and do not develop the relationships required for in-depth reporting. The demand to write stories quickly for websites was also cited as a problem that is limiting journalists from reflecting on the significance of major issues. The second change that participants highlighted is the deterioration of communication between the press and the public service. Strict rules on how public servants can communicate with the media has meant that information on important issues is often not shared, forcing journalists to rely on experts outside of government to provide clarity and context. Due to these changes, one participant noted that it may be unfair to expect the media to be a main source of education on major constitutional and governance issues. Although some see the media as moving from its more traditional information and education role to something resembling entertainment, all roundtable participants agreed that the media is an indispensable element in the government formation process and is essential in order to communicate important information to the public. Thanks to the open process and publicly-accessible draft cabinet manual in the United Kingdom, the public service, media and public are now well prepared for the various scenarios when election results are unclear. This inclusive process provides the media with clear expectations and access to information from key leaders who are engaged in forming the UK government. As a result, the news media refrained from issuing sensationalized stories during the period that led to the establishment of a coalition government. As in the United Kingdom, the creation of a clear set of guidelines in Canada would help frame the media s role in the government formation process, answering key questions that include: Should standard communication processes be developed between the media and public service in order to better share information, increase transparency, and educate the public? Should the media seek to immediately pronounce an election-night winner, or do they have a duty to be cautious in the event of an uncertain election outcome? How can media reporting help support the government formation process? Points of Consensus 1. It is important for the media to be part of the process of government formation The news media has a very important, if informal, role to play in the government formation process. The release of a set of guidelines explaining how information will be shared and detailing the roles and responsibilities of each of the major stakeholders will allow the media to more effectively scrutinize events and hold leaders to account. 7

12 2. The media should not be the only source of education on government issues The news media plays an indispensible role in the government formation process and is essential for the communication of important information to the public. The public service and representatives of political parties must work with journalists to ensure that accurate information is available on a timely basis. 3. The media should be able to declare a winner on election night if there is a clear outcome. Roundtable participants agreed that irrespective of an election outcome, the media has the right to declare a winner on an election. However, in situations where the outcome is unclear, other stakeholders (party leaders, the public service) should work with journalists in order to ensure that the public is well informed and that a transparent process is being used to effectively address uncertainty. 8

13 Conclusion In the spring of 2011, the Public Policy Forum will reconvene the participants of the March roundtable discussion to expand on some of the themes explored in this summary report. At that time, we will be joined by Sir Gus O Donnell, Secretary of Cabinet and Head of the Home Civil Service of the United Kingdom. Sir Gus O Donnell has led the process of producing a Draft Cabinet Manual for the United Kingdom which addresses some of the central questions related to the British Government in general, including government formation. Our intent is to have him join us in Canada to discuss the UK experience. We believe we can learn from the recent British experience as well as established rules and conventions in both New Zealand and Australia. Following these events, the Public Policy Forum, in collaboration with other interested individuals and groups, aims to produce a report detailing the proceedings and recommendations of the assembled experts. It is our intention that this report will serve as a valuable resource as Canada moves towards a better understanding of its own intricate policies and practices regarding government formation. Our belief is that a clear set of publicly available guidelines concerning government formation is in the best interest of good governance in Canada. 9

14 Roundtable Participants Moderator: David Mitchell Mr. Mitchell is the President and CEO of the Public Policy Forum. Previously, he served as Vice-President at three Canadian universities: Queen s, the University of Ottawa and Simon Fraser University. Serving as a Member of the British Columbia Legislature from 1991 to 1996, he was a watchdog on a broad range of issues including parliamentary reform, advanced education, resource management and labour relations. He has also served as Deputy Clerk of the Saskatchewan Legislature. Margaret Bloodworth Ms. Bloodworth is a former Associate Secretary to the Cabinet and served as the National Security Advisor to the Prime Minister. She also served as Deputy Minister in three federal government departments (Public Safety, Defence and Transport). Currently, Ms. Bloodworth is a Mentor with the Pierre Elliot Trudeau Foundation. Derek Burney Mr. Burney headed the Conservative Transition Team following the federal election in 2006 and in October 2007 was appointed by Prime Minister Stephen Harper to be on the Independent Panel on Canada s Future Role in Afghanistan. In 1987, Mr. Burney became Chief of Staff to Prime Minister Mulroney and later became Canada s Ambassador to the United States ( ). He is now a Senior Strategic Advisor at Oglivy Renault. Mel Cappe Mr. Cappe is the President and CEO at the Institute for Research on Public Policy. He has served in many senior positions in the public service, including: High Commissioner for Canada to the United Kingdom of Great Britain and Northern Ireland; Clerk of the Privy Council; Special Advisor to Prime Minister Chrétien; Deputy Secretary to the Treasury Board, and; Deputy Minister of Environment Canada, Human Resources and Skills Development Canada and the Department of Labour. Susan Delacourt Ms. Delacourt is a Senior Writer at the Toronto Star and is the author of United we Fall and Shaughnessy: The Passionate Politics of Shaughnessy Cohen and Juggernaut: Paul Martin s Campaign for Chrétien s Crown. Adam Dodek Professor Dodek teaches Introduction to Public Law and Legislation, Torts and first year elective courses in Legal Ethics and Professional Responsibility at the University of Ottawa. He has Clerked for the U.S. Court of Appeals for the Ninth Circuit in Pasadena and for Justice Claire L Heureux-Dubé at the Supreme Court of Canada. He was also Chief of Staff for the Ontario Attorney General. 10

15 C.E.S. (Ned) Franks Dr. Franks is a Professor Emeritus at Queen s University and is the founding President of the Canadian Study of Parliament Group. He has conducted many studies for royal commissions, for Parliament, and for government agencies. Professor Franks has also written and edited fourteen books and monographs, including The Parliament of Canada, The Canoe and White Water and Dissent and the State. V. Peter Harder Mr. Harder is a Senior Policy Advisor at Fraser Milner Casgrain LLP. He has served as Deputy Minister at Treasury Board, Solicitor General, Citizenship and Immigration, Industry and Foreign Affairs and International Trade. He has also performed the duties of the Personal Representative to the Prime Minister at three G8 Summits (Sea Island, Gleneagles and St. Petersburg). Gregory Marchildon Dr. Marchildon is a Professor at the Johnson- Shoyama Graduate School of Public Policy at the University of Regina and currently holds the Canada Research Chair in Public Policy and Economic History. He is the former Executive Director of the Romanow Commission on the Future of Health Care in Canada. He has also served as Saskatchewan s Cabinet Secretary and Deputy Minister to the Premier, and as Advisor to the Fyke Commission on Medicare. Peter H. Russell Dr. Russell is a Professor Emeritus at the University of Toronto and has published widely in academic journals and intervened in many instances of constitutional crisis and development. He is the author and co-editor of several books on the constitution, democracy and the judiciary, including a volume on Judicial Independence in the Age of Democracy and Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy. Jeffrey Simpson Mr. Simpson is a National Affairs Columnist at The Globe and Mail. He began his career with The Globe at City Hall in Toronto and with coverage of Quebec politics. In 1977, he became a member of the paper's Ottawa bureau, and eighteen months later he was named The Globe and Mail's Ottawa bureau chief. Mr. Simpson has published eight books including, but not limited to, Spoils of Power; The Friendly Dictatorship: Reflections on Canadian Democracy, and; Hot Air: Meeting Canada s Climate Change Challenge. Paul Wells As a Senior Columnist for Maclean's magazine, Mr. Wells is one of Canada's foremost political commentators. His first book, Right Side Up: the Fall of Paul Martin and the Rise of Stephen Harper's New Conservatism was a national bestseller. He has written for Time magazine, the National Post, La Presse and the Literary Review of Canada. 11

16 David Zussman David Zussman is the Jarislowsky Chair in Public Sector Management at the University of Ottawa. He has been President of the Public Policy Forum and he served as Executive Vice President and COO of EKOS Research Associates Inc. In the public sector, he was Assistant Secretary to the Cabinet for Program Review and Machinery of Government in the Privy Council. In both 1993 and 1997, he was asked by Prime Minister Jean Chrétien to lead the transition for his newly elected governments. 12

17 Appendix 1 Canadian Parliaments, Dissolution, Elections, First Sittings, Etc. CES Franks, 23 March 2011 Election Election Date Recess prior Dissolution to Dissolution to Election to Recess to to Dissolution Election First Sitting First Sitting First Sitting (days) (days) (days) (days) (days) 40th ** th* ** th ** th th th* th rd* nd* st* ** th th ** th th ** th* ** th ** th rd* ** nd st th Average all elections *Result change of governing party **Result minority Parl't Result Majority Parliament Source: Parliament Info website, A to Z Index, Various Tables Appendix 1 continues 13

18 Appendix 1 continued Observations: Parliaments, : Dissolution, Elections, First Sittings, Etc. CES Franks, 23 March ) The data in my Table Parliaments, : Dissolution, Elections, First Sittings, is drawn from various tables on the Parliament Info website. There are minor variances between the data in some of the tables on this site, but these variations have no impact upon the results presented in my table. 2) The period covered, from 1945 to 2008, includes 21 of the 40 general elections in Canada from 1867 to This period also covers sixty-five of the one hundred and forty-three years (40%) of Canada s existence. 3) In nine of the twenty-one elections from 1945 to 2008 the House was already in recess when a Parliament was dissolved for a general election. These elections, and the number of days the House had been in recess at the time of dissolution, are identified in the Recess Prior to Dissolution column in the table. This period of recess has been as long as 83 days (1993). On three occasions it has lasted more than two months. 4) During the times the House is in recess a government constitutionally possesses and exercises the full powers of a government that enjoys the confidence of the House. The recess period is not normally considered part of the election period. I shall raise some questions about this below. 5) Between 1945 and 2008, on average 144 days, or about four and a half months, has elapsed between the last sitting of the House in one Parliament and the first sitting of the next Parliament. 6) The longest period from the last sitting of one Parliament to first sitting of the next in this period, 214 days, occurred between the 34 th and 35 th Parliaments, in The House adjourned for the summer on June 17 of After a one-day meeting of Parliament for the formal occasion of royal assent - no question period, motions, or debate, and most members absent - on June 23, the summer recess continued until Parliament was dissolved on September 8, 76 days later. The total length of the summer recess, ignoring the purely formal occasion of royal assent, was 83 days. The House was still in recess when it was dissolved on September 8. The 35 th general election was held on October 25, after an election period of 47 days. The new Parliament did not meet until January 16, 2004, 84 days after the general election. The government changed as a result of this election, from a majority Progressive Conservative government to a majority Liberal government. When Parliament met for the first time in the 35 th Parliament on January 16, 2004, 214 days, or seven months, had elapsed since the last sitting of the House. 7) The longest period between the end of one Parliament and the beginning of the next when there was both a change of party and the result, was the minority Parliament created by Canada s 31 st general election on May 22, Parliament had not been in recess at the time of the dissolution of Parliament on March 26, The election period lasted 57 days. Prime Minister Trudeau s Liberals won fewer seats than opposition leader Joe Clark s Progressive Conservatives in the 31 st election. Joe Clark took over as prime minister after Trudeau resigned on June 3, 1979 twelve days after the general election. Parliament did not meet until September 10, 140 days after the general election, and 128 days after Joe Clark had become prime minister in the minority Parliament. By then a total of 197 days, more than six months, had elapsed since the 14

19 last meeting of the House of Commons. Prime Minister Joe Clark had governed for more than four months without meeting the House in this minority Parliament to prove he enjoyed its confidence. Soon after the House met, the Clark government was defeated on a vote of confidence, and the session ended when the 31 st Parliament was dissolved on December 12. In the subsequent general election, held on February 18, 1980, 66 days later, former Prime Minister Trudeau won a majority. Thirteen days later, on March 2, Prime Minister Joe Clark resigned and Trudeau became prime minister once again. However Trudeau did not meet Parliament until 43 days later, on April 14, The total period between the last sitting and dissolution of the 31 st Parliament on December 12, 1979 and the first sitting of the 32 nd on April 14, 1980 was 122 days. 8) The application of the caretaker provisions must be considered in the context of three different sections to the election periods, between the last sitting of one Parliament to the first sitting of the next: One, the period when the House is in recess from adjournment (or prorogation) to the time when the Parliament is dissolved; Two, from the dissolution of one Parliament to the ensuing general election; Three, from the general election to the first meeting of the next Parliament. Traditionally, one, the period when the House is in recess, has not been considered part of the election period and a government has retained its full powers during it. This period has, however, as the table shows, on occasion been longer than the election period itself. In other words the government has enjoyed its full powers, with the caretaker provisions not in effect, without having to face the House to defend its use of its powers during this period of recess. It is worth considering when, and under what circumstances, this period of recess immediately preceding dissolution should be governed by some version of the election period caretaker rules. At the same time it must be recognized that traditionally it has been accepted that when Parliament is in recess a government that continues to enjoy the confidence of the House continues to function as government in the full sense of the term, with none of the restrictions that might be imposed on a caretaker government during an election period. The caretaker provisions only come into effect when a Parliament is dissolved. An unscrupulous government that knows that it is likely to lose a forthcoming election might want to prolong this period of pre-election recess in order to enjoy the benefits of office for as long as possible. Two, the election period itself is the obvious period during the caretaker rules should be in force. However, even here Canadian experience shows a lack of consistency. The fact that the rules themselves have been kept secret has been no help in improving public understanding of the mysteries of the processes of parliamentary government, or how the system copes or fails to cope with the uncertainties about which party enjoys the confidence of the House that elections invariably entail. Further, whatever Canadian document exists from all accounts is skimpy and much less thorough than its British counterpart, which, it should be noted, is a public document. Three, the period between an election and the meeting of the next Parliament can endure a very long time in Canada, especially when there is a change of government, or the result of the election is a minority Parliament. When there is a change of governing party the post-election period has averaged 91 days. When the result is a minority Parliament the post-election period has averaged 83 days. In a very real sense, until a government has met the House and survived a vote of confidence after an election, it has not proven that it enjoys the confidence of the House. It is not clear if, when, or under what conditions the caretaker conventions (or some portion of them) should rule during this often extended post-election period of potential uncertainty when a government retains or assumes power but has not met the House and proven that it enjoys its confidence. 15

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