Restraint is the watchword for the government and bureaucracy during a federal election — and sometimes their caution goes too far.
I have heard (possibly from myself) that Prime Minister Mark Carney named a “caretaker cabinet” last Friday. The caretaker terminology is fair enough in casual parlance, insofar as Carney’s ministers are presumably holding down the fort until an election takes place and either Carney himself or another party leader forms a new government.
But Carney is not in fact heading a caretaker government and it would be premature to have expected any slowdown in government business. Witness the quick cabinet action over the carbon tax, and the prime minister’s lightning raid on two European capitals this week.
So what is this “caretaker” concept about and when does it apply?
The original ‘caretaker convention’
In its original sense, with roots dating to the 19th century, a caretaker government exists when a prime minister has lost an election and is waiting for the new ministry to be sworn in. By convention, such a government is expected to limit its actions to matters that are so routine (such as the ordinary day-to-day business of government) or so urgent (such as responding to natural disaster or external crisis) that they can’t wait for the transfer of power. That means no non-routine expenditures, policy decisions, or appointments. And if an urgent decision is controversial or hard to reverse, there is an expectation of consultation with the incoming government.
The convention of restraint
The caretaker convention has long since evolved into a broader practice that the government of Canada refers to as the “convention of restraint,” whereby the caretaker rules apply throughout an election. This makes perfect sense, there being no legislature to hold the executive to account once Parliament is dissolved, and no certainty as to who will form the next government.
In this case, a government retains full legal authority and no court would reverse its decision on account of the convention. However, the convention is deeply ingrained, generally well respected, and there is constitutional precedent suggesting that the Governor General could refuse to sign orders that go against it.
There are some significant examples of the convention in action. For instance, in 1979-80, prime minister Joe Clark refused to commit the government to a $2-billion purchase of F/A-18 Hornet fighter aircraft after his government lost a confidence vote. During the 2011 election, prime minister Stephen Harper’s government, grappling with Canada’s participation in NATO’s Libya mission, sought and received the Official Opposition’s agreement before attending international meetings on this issue.
But we might legitimately ask, as our neighbour to the South menaces us over annexation, isn’t everything urgent right now? Ontario Premier Doug Ford certainly didn’t let a little thing like an election cramp his activist style. Ford would presumably say there’s nothing controversial about saving Canada. Whether Carney’s opponents in a federal election will cut him similar slack, I’m not so sure.
The use (or non-use) of government resources
Beyond the matters of accountability and a possible change of government, there is a further reason for restraint during elections, one that particularly implicates the public service. Specifically, the resources of the state, including public servants, are only to be used for official government business, not partisan purposes. This rule applies at all times, but tends to ratchet up significantly during elections.
Given that ministers and their staff are mostly out on the hustings, not much official government business takes place under their auspices. Cabinet and its committees seldom meet during an election (operationally focused meetings of the Treasury Board being the main exception). Government departments, led by the Privy Council Office, typically place tight limits (for example, how many smartphones) on the material resources and personnel support available to ministers for conducting official government business during elections.
Routine work like processing tax returns or pension applications and running national parks goes on as before, but public servants must not be asked to do party work. There’s little if any evidence of disrespect for this principle, but that said, more than usual vigilance around requests from ministers’ offices is in order, especially when it comes to helping with talking points.
Bureaucrats who want to work for a party must do so on their own time and following the requirement of the Public Service Employment Act that it not interfere with their ability to perform their jobs impartially.
The principles governing the activities of officials haven’t changed much in recent decades, but successive governments and public service leaders have applied them with varying degrees of stringency. A few elections back, the public service leadership was criticized for going too far, as officials cancelled everything from routine meetings to attendance at professional seminars — needlessly, I would argue.
Whether that happens this time we don’t know, but bureaucrats will mostly wait until after the election for the real excitement to begin. Then … brace yourselves!
Karl Salgo is a former senior public servant and is currently executive adviser at the Ottawa-based Institute on Governance.
