Governing Responsibly: A Guide For Ministers and Ministers of State
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Canada is a constitutional monarchy and a democracy with a system of responsible parliamentary government based on the British Westminster model. As such, the structures and conduct of executive authority are governed both by Canada’s “written” constitution (the Constitution Acts, 1867-1982) and by an “unwritten” constitution composed of conventions and customs that have been established and have evolved over the history of responsible government in Canada.
The “unwritten” constitution establishes key elements of Canadian democracy regarding executive authority in government as exercised by the Prime Minister and the Cabinet, who are responsible to the House of Commons, which is made up of the elected representatives of the people of Canada. This Annex outlines the basic roles and responsibilities of executive authority in that system.
In formal terms, executive government in Canada is vested by the Constitution Act, 1867 in the Queen of Canada, who is the head of state. The Governor General is the representative of the Queen, and exercises the power and functions of the Crown on her behalf.
In Canada’s democratic system of government, the Governor General is almost always bound to act only on the advice of the elected representatives who belong to the party that has the confidence of the House of Commons. Advice is offered directly by the Prime Minister on some matters, or is provided formally by the Ministry or government as a whole. It is the personal prerogative of the Prime Minister to convey the view of the government to the Governor General. The Governor General’s consent must be obtained, when required, before decisions can take legal effect or be announced.
In constitutional terms, the chief advisory body to the sovereign is the Queen’s Privy Council for Canada,1 composed of all those sworn in as Privy Councillors. It is exceedingly rare for the full Privy Council to meet as a body and, even then, does so only for ceremonial purposes.
The Prime Minister, as the leader of the political party that has the confidence of the House of Commons (usually by holding a majority of the seats), is commissioned by the Governor General to form a government.
The Prime Minister is, above all, responsible for organizing the Cabinet and for providing the direction necessary to maintain the unity of the Ministry. This unity is essential if the government is to retain the confidence of the House of Commons.
The following principal functions and exclusive powers of the Prime Minister are essential in making Cabinet government work:
- The Prime Minister leads the process of setting the general direction of government policy.The Prime Minister is responsible for arranging and managing the processes that determine how decisions in government are made, and for reconciling differences among Ministers. The Prime Minister establishes the government’s position before Parliament by recommending to the Governor General the summoning and dissolution of Parliament, by preparing the Speech from the Throne outlining the broad policy agenda for each new parliamentary session and by determining whether proposed government legislation approved by the Cabinet is subsequently put before Parliament. The Prime Minister approves the Budget presented by the Minister of Finance.
- The Prime Minister chooses the principal holders of public office. The Prime Minister selects Ministers and may ask for their resignation at any time. The Prime Minister also recommends senior public sector appointmentsto the Governor General.
- The Prime Minister decides on the organization, procedures and composition of the Cabinet. This includes establishing Cabinet committees, selecting their membership and convening the Cabinet itself. In practical terms, the Prime Minister forms a team, decides on the process for collective decision making, and builds and adapts the machinery of government in which the team will operate.
- The Prime Minister determines the broad organization and structure of the government in order to meet its objectives. The Prime Minister is responsible for allocating Ministers’ portfolios, establishing their mandates, clarifying the relationships among them and identifying the priorities for their portfolios through mandate letters. The Prime Minister’s approval is required for the creation of new institutions and the elimination of existing organizations, some of which may also be subject to parliamentary decisions. Any proposals made by Ministers for significant organizational change or for altering their own mandates or those of other Ministers must first be approved by the Prime Minister.
- The Prime Minister has the overall responsibility for the government’s relations with Parliament and the Sovereign.
- The Prime Minister establishes standards of conductfor Ministers.
- As head of government, the Prime Minister has special responsibilitiesfor national security, federal-provincial-territorial relations and the conduct of international affairs. The Prime Minister may also take a special interest in any other area of a portfolio responsibility as circumstances require. Ministers should pay special attention to activities within their own portfolio that touch on these special responsibilities or otherwise involve the Prime Minister.
Members of the Ministry include Ministers and Ministers of State. Ministers and Ministers of State are also members of the Cabinet. Members of the Ministry are appointed by the Governor General on the Prime Minister’s recommendation. Before taking up their responsibilities, they are sworn in as Privy Councillors by the Clerk of the Privy Council at a ceremony presided by the Governor General. In this ceremony, Privy Councillors swear the oath of allegiance, the Privy Councillor’s oath and, in the case of Ministers, the oath of office for their respective portfolio. The Privy Councillor’s oath includes the undertaking to maintain Cabinet secrecy. Privy Councillors are entitled to be styled “The Honourable” and to use the initials “P.C.” after their names for life.
Unlike the Privy Council, the Cabinet has no standing in statute. In practice, the Cabinet is the fundamental and final forum for reaching a political authoritative consensus on government issues under the Prime Minister’s leadership.
The Governor in Councilis the term for the Cabinet acting in a legal capacity. Formally, it is the Governor General acting on the advice of the Cabinet. Parliament does not assign powers to the Cabinet or to Ministers collectively, but rather to the Governor in Council.
- The Constitution Act, 1867, formerly called the British North America Act, 1867.
- The Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms.
- Acts of Parliament (principally departmental Acts) create the offices and responsibilities of Ministers, establish the departments over which they preside, and provide a basic framework of powers, duties and functions for which Ministers are accountable.
- The Public Service Employment Act establishes a continuing, professional and non-partisan Public Service of Canada.
- The Financial Administration Act shapes virtually all aspects of government management through the powers it grants to the Treasury Board to oversee departments and other organizations. The Treasury Board is the Cabinet committee responsible for managing the Public Service of Canada and for approving expenditures of departments and agencies. Many of its decisions have the force of law, limiting Ministers’ discretion to manage and direct their departments.
- The Access to Information Act establishes a public right to access general information contained in government documents. Under its provisions, the government may withhold material only if disclosing the information could adversely affect the public interest. The Privacy Act protects personal information held by the government from unauthorized disclosure.
- Other important Acts include the Official Languages Act,the Canadian Human Rights Act and the federal Employment Equity Act.
The Cabinet is the political forum where Ministers reach a consensus and decide on issues. It is the setting in which they bring political and strategic considerations to bear on proposed ministerial and governmental actions. These considerations must necessarily reflect the views and concerns expressed by Canadians, caucus colleagues, and other Parliamentarians. Once a consensus is reached, Ministers can fulfil their collective responsibility to Parliament. This Annex addresses the main elements of the organization and conduct of decision making in the Cabinet.
A number of basic ground rules for the conduct of Cabinet business are essential to maintain Cabinet solidarity and enhance its practical effectiveness.
Decision making is led by the Prime Minister. Through the Cabinet and its committees, the Prime Minister provides Ministers with the principal forum in which they can resolve different perspectives. The Prime Minister organizes Cabinet and Cabinet committee decision making, determines the agenda for Cabinet business and chooses committee chairpersons to act on his or her behalf. The Privy Council Office is the Cabinet’s secretariat and administers the Cabinet decision making process on behalf of the Prime Minister.
Cabinet government works through a process of compromise and consensus building, which culminates in a Cabinet decision. The Cabinet and Cabinet committees do not vote on issues before them. Rather, the Prime Minister (or committee chairperson) “calls” for the consensus after Ministers have expressed their views. As the Cabinet secretariat, the Privy Council Office records and communicates the decision.
Consultation among the Ministers, departments and portfolios involved must precedethe submission of a proposal to the Cabinet by the responsible Minister or Ministers. Ministerial discussions in the Cabinet or Cabinet committee focus on the decisions required and provide Ministers with an opportunity to participate in and influence that decision.
Ministers have the right to seek their colleagues’ consideration of proposals for government action in their area of responsibility. This is, of course, subject to the agenda set by the Prime Minister for government priorities. Cabinet committee agendas are set by the committee chairpersons acting on the Prime Minister’s behalf.
Confidences of the Queen’s Privy Council for Canada, more commonly referred to as “Cabinet confidences,” must be appropriately safeguarded from unauthorized disclosure or other compromise. The Cabinet’s collective decision making process has traditionally been protected by the rule of confidentiality, which enhances Cabinet solidarity and collective ministerial responsibility. Confidentiality ensures that Ministers can frankly express their views before a final decision is made. The Prime Minister expects Ministers to announce policies only after Cabinet decisions are taken, in consultation with the Prime Minister’s Office. Parliamentary Secretaries involved in the decision-making process are also expected to preserve the confidentiality of Cabinet deliberations.
Cabinet business is extensive, and Cabinet consensus at times is difficult to achieve. Given the limited time available to Ministers and given the importance of clear decisions to government operations, Cabinet business must be conducted efficiently and according to accepted ground rules that are fully understood and respected. Cabinet discussion is not used to air introductory or preliminary discussions of issues. Deputy ministers are expected to ensure that other affected departments are adequately informed in advance and that coordination across portfolios is pursued so that other Ministers are prepared for Cabinet discussion and government decisions are coherent and aligned with overall objectives. When departments directly involved differ on a matter, the dispute should not be referred to the Cabinet until all other means of resolving it have been exhausted.
Cabinet decision making is steered by certain key statements of government policy and priorities as well as by electoral commitments. The Speech from the Throne, delivered by the Governor General at the beginning of each session of Parliament, outlines the government’s program for Parliament. As a reflection of the overall priorities of the government and the Prime Minister, the Speech provides a general policy framework for the upcoming parliamentary session.
The Minister of Finance presents the government’s annual Budget which reflects the fiscal framework agreed to by the Cabinet. The President of the Treasury Board subsequently tables the Main Estimates.
These frameworks provide for the overall direction of the government. They both shape and reflect the ongoing work of Cabinet committees.
The Cabinet process begins when an issue is raised by a Minister in the form of a Cabinet document or through general discussion at a meeting. The supporting documents are normally circulated to all Ministers by the Privy Council Office before the issue is discussed at the appropriate Cabinet committee. As well, Ministers may take the opportunity to update their colleagues on the progress of certain key initiatives being developed or implemented in their departments.
The Cabinet committee’s report is subject to confirmation by the Cabinet. Records of final decisions are circulated to all Ministers and their deputy ministers for action under Ministers’ individual authority. Policy announcements are made after a Cabinet decision and after the Treasury Board’s approval of any resources required to implement the decision.
The content of the government’s legislative program is ultimately the responsibility of the Prime Minister, assisted by the Government House and Senate Leaders. The main thrusts of the program are determined by the Cabinet. The Leader of the Government in the House of Commons coordinates the process of translating the Cabinet’s policy decisions into bills to be placed before the House of Commons.
The first stage in this process is Cabinet approval of a Minister’s policy proposal. After Cabinet has approved a Minister’s policy proposal, a bill is then drafted by the Department of Justice to reflect the Cabinet decision. Priorities in drafting are established by the Leader of the Government in the House of Commons, who also undertakes final scrutiny of a bill before it is approved by the Cabinet for introduction in Parliament on his or her recommendation 2. The Leader of the Government in the House of Commons has flexibility in establishing priorities for consideration of bills by the House, although Cabinet discussions of House business provide the overall direction for the government’s legislative program. The Leader of the Government in the House of Commons is supported in this regard by his or her own exempt staff, the Privy Council Office, and the Deputy House Leader and Chief Government Whip.
Cabinet committees are an extension of the Cabinet itself. The Prime Minister establishes both standing and temporary (or special purpose) committees, chooses their membership, prescribes their procedures and changes them as he or she sees fit. The Privy Council Office provides Ministers with information on the Prime Minister’s decisions regarding the structure and operations of Cabinet committees.
Currently, most collective ministerial deliberations take place in Cabinet committees. Committee chairpersons act for the Prime Minister with his or her authority, including setting the committee agenda. For the most part, decisions are taken by the appropriate committee, subject to confirmation by the Cabinet. This system settles as many questions as possible at the committee stage in order to lessen the workload of the Cabinet and to allow it to concentrate on priority issues and broad political concerns.
The Treasury Board is established by law as a committee of the Queen’s Privy Council for Canada, and many of its decisions have force of law. It provides oversight of the government’s financial management and spending, as well as oversight on human resources issues. The Treasury Board may act as the Cabinet committee for the Public Service and expenditure management (under the Financial Administration Act). The Board is the employer for the Public Service, and establishes policies and common standards for administrative, personnel, financial and organizational practices across government. It also controls the allocation of financial resources to departments and programs. As of December 2003, the Treasury Board also fulfills the role of the Special Committee of Council (SCC) in approving regulatory policies and regulations, and all Orders in Council, excluding appointments.
Ministers, including Ministers of State, may be invited by the committee chair to attend any meeting of a Cabinet committee, whether or not they are a member of the committee. Parliamentary Secretaries may attend meetings of the Cabinet on the Prime Minister’s invitation, or a Cabinet committee meeting on the invitation of the chair. The Prime Minister may make other exceptions to these conventions. The Prime Minister designates certain Ministers as ongoing members of each committee, and they are expected to attend these regularly. If Ministers are not able to attend a meeting, they should inform the Chair of their views on agenda items by letter.
Meetings are conducted as informally as possible in both official languages. Most Cabinet committees meet on a regular schedule. This allows for effective planning and ensures that meetings and decisions can proceed without delay. As the Cabinet secretariat, the Privy Council Office provides the Cabinet and its committees the support required to prepare for and conduct meetings including arranging meetings, circulating agendas, distributing documents, providing advice to the chairperson of each committee on agenda items and recording Cabinet minutes and decisions.
Some actions of the executive require a more formal process. Orders in Council are legal instruments made by the Governor in Council pursuant to statutory authority (or, infrequently, royal prerogative). Recommendations to the Governor in Council are signed by the responsible Minister. They take legal effect only when signed by the Governor General.
According to the Constitution, revenue can be raised and moneys can be spent or borrowed by the government only with the authority of Parliament. A money bill, for the raising or spending of revenue, must originate in the House of Commons, as the House is the custodian of the public purse. The Constitution Act, 1867also requires money bills to be recommended to the House by the Governor General in the form of a Royal Recommendation. This ensures executive control over revenue raising and spending initiatives, and is obtained by the Leader of the Government in the House of Commons.
Parliament exercises its authority over government financial administration by means of a package of instruments comprising enabling legislation such as the Appropriations Act, financial documentation such as the Main Estimates (Parts I, II and III and the Public Accounts), and a review process by the House of Commons, the Senate and the Auditor General. 3
The Prime Minister has the following key responsibilities regarding appointments:
- All appointment recommendations are subject to the Prime Minister’s approval before they go forward to the Governor in Council.
- Remuneration for most Governor in Council appointments, both full-time and part-time, is set or approved by the Governor in Council on the recommendation of the Prime Minister. On this matter, the Prime Minister is supported by the Privy Council Office. Remuneration for some Governor in Council appointments is set by Crown corporations’ by-laws or other means.
In addition, the following are important aspects of the appointment process:
- To open the process and identify candidates, vacancies for full-time, fixed-term Governor in Council positions are generally advertised in the Canada Gazette.
- Representational criteria such as regional considerations are taken into account when recommending appointments. Another relevant factor is employment equity, to better represent women, visible minorities, Aboriginal peoples and people with disabilities.
- Governor in Council appointees must meet the requirements of the Conflict of Interest and Post-employment Code for Public Office Holders. The Ethics Commissioner administers the Code and provides advice to office holders and potential appointees. Part-time appointees are subject to the principles of the Code.
- All Governor in Council appointees are subject to rigorous background checksprior to appointment.
- Announcements of appointments are coordinated by the Prime Minister’s Office, after they have been given legal effect when signed by the Governor General.
- By legislation or requirement under Standing Orders of the House of Commons, some appointments are subject to parliamentary review and resolution prior to being made final.
- Currently, other Governor in Council appointments (except judicial positions) are tabled in the House of Commons after each appointment is made in order to give the appropriate standing committee the opportunity to call the appointee and examine his or her qualifications.
- Parliament will be called upon to play a greater role in the appointment process. Appointments to certain key positions, including heads of Crown corporations and agencies, will now be subject to prior parliamentary review. The government will consult with the appropriate House committees on how best to proceed on prior review of these appointments, and will specifically consult the Standing Committee on Justice and Human Rights on how best to implement prior review of appointments of Supreme Court of Canada Judges. These committees will also have the opportunity to consider which other appointments could be subject to their review.
This Annex describes the four categories of ministerial papers and the access to document rules that apply to former Ministers, Ministers of State and Secretaries of State.
Cabinet documentsbelong to the Prime Minister. Cabinet documents are formal records designated by the Privy Council Office as belonging to the Cabinet Paper System. They include Memoranda to Cabinet (MCs), decks, Cabinet Committee Reports (CRs), records of decisions (RDs), agendas, aide-mémoire, and documents prepared for Ad Hoc Cabinet Committees or Reference Groups of Ministers.
This category also includes formal Cabinet documents related to meetings of the Treasury Board, including submissions, précis, agendas, schedules, minutes of meetings and letters of decision.
The efficient operation of the Cabinet and the necessary confidentiality of ministerial discussions depend, in part, on the proper handling of Cabinet documents. Ministers must ensure that Cabinet documents provided to them are always safeguarded in accordance with the security requirements set by the Privy Council Office or, for Cabinet documents related to the Treasury Board, to the Treasury Board Secretariat. Parliamentary Secretaries must also respect this protocol when they are given access to such documents. Ministers must assign members of their staff with specific responsibility for controlling the flow and ensuring the security of these documents. When a Cabinet item has been dealt with, the associated Cabinet documents must be returned to the Privy Council Office or the Treasury Board Secretariat, as appropriate.
Certain Cabinet documents that are clearly marked for Minister’s eyes only cannot be reviewed by exempt staff. Some Cabinet documents must remain in the Cabinet room. Cabinet documents must not be photocopied, electronically scanned or sent by facsimile, and they must be carried in a secure briefcase. A record containing Cabinet confidences which is not a Cabinet document is either an institutional record (if it originated with the institution), or a ministerial record (if it originated with the office of the Minister; e.g., a briefing note containing political advice to a Minister regarding a Cabinet matter).
Institutional Records relate to the business (policies, programs, activities and services) of the department and associated agencies, and are kept in a separate registry.
Ministerial records include official records pertaining to the office of the Minister, other than records that fall into the categories of personal or political records, institutional records, or Cabinet documents.
Personal and political records are personal, as opposed to official in nature (e.g., a Minister’s constituency business, party political matters, private and personal life) and are kept in separate ministerial files. Like ministerial records, personal and political records are normally excluded from the application of the Access to Information Act, provided that they are maintained separately from institutional records.
When a Minister leaves office, Cabinet documents must be returned to the Privy Council Office or Treasury Board Secretariat, institutional records must be left with the department, and ministerial records must be transferred directly to Library and Archives Canada. Ministers may remove only their personal and political papers. However, to ensure the security of sensitive documents in personal and political papers, Ministers should use storage facilities and archival services offered by Library and Archives Canada.
Former Prime Ministers have control over the confidences of the government they headed. When a change of government occurs, the outgoing Prime Minister traditionally leaves the Cabinet records of the government in the custody of the Clerk of the Privy Council. The Clerk of the Privy Council plays a central role in administering the convention governing access to Cabinet and ministerial papers.
Subject to any arrangements a former Prime Minister may make with his or her successor, former Ministers may have access to Cabinet papers for the period of time when they held office, but only for that period, and only to papers relating to that office or to which they would normally have had access. Requests for access are addressed to the Clerk of the Privy Council and Secretary of the Cabinet or, for requests concerning Treasury Board documents, to the Secretary of the Treasury Board. Cabinet papers to which access is provided may be read on the premises of the Privy Council Office or the Treasury Board Secretariat as appropriate.
Former Ministers may have access to ministerial records that are transferred to Library and Archives Canada on the premises of Library and Archives Canada. They may also have access to institutional records which were prepared in their departments during the period of time when they held office. For access to institutional records, they can contact the deputy minister and arrange to review them on departmental premises.
Former Ministers are bound for life to respect their oath as Privy Councillors, including maintaining the secrecy of Confidences of the Queen’s Privy Council for Canada, and remain subject to the Security of Information Act. They must also honour their commitments to other Ministers and colleagues. When talking or writing about their experience in government, former Ministers must consult their former department’s Access to Information Office to ensure that they do not disclose matters that remain confidential. Any questions should be addressed to the Clerk of the Privy Council.
Ministers shall not intervene, or appear to intervene, on behalf of any person or entity, with federal quasi-judicial tribunals on any matter before them that requires a decision in their quasi-judicial capacity, unless otherwise authorized by law.
Dealings with Quasi-judicial Tribunals Within the Portfolio
Ministers (including Ministers of State) need to be in contact with agencies in their portfolio on a broad range of administrative, policy and regulatory matters when authorized to do so by legislation. For instance the Minister may communicate with the Chair of a tribunal on its budget.
Ministers and their deputies should work with the agencies in their portfolio to clarify mutually agreed limits on the information which may flow to and from each agency and the appropriate procedures for communication.
The Minister's office can expect requests for assistance from other Ministers on behalf of their constituents. Where such an intervention with an agency is not appropriate because the request concerns a quasi-judicial case, the Minister's office should indicate that an intervention is not possible by any Minister and suggest that the constituent deal directly with that agency.
Dealings with Quasi-judicial Tribunals on Behalf of Constituents
There are limitations on the ability of a Minister to act on behalf of constituents as far as quasi-judicial bodies are concerned.
Ministers and their staff cannot intervene on behalf of any person or entity with a federal quasi-judicial agency on any matter before it that requires a decision in its quasi-judicial capacity.
Eugene Forsey considered that by convention, a Minister should not "speak about or otherwise become involved in a colleague's portfolio without first consulting him and gaining his approval...". The practice has evolved whereby Ministers and their offices do not deal directly with public servants, but go through the office of the responsible Minister.
However, Ministers and their staff may seek information on the status of a matter. Further, several departments have set out specific instructions on how Ministers’ offices, usually in the constituency, can deal with enquiries regarding such matters as disability benefits, employment insurance, old age security, or citizenship and immigration.
The Minister who is the appropriate Minister for a Crown corporation must have dealings with the corporation on a variety of matters. The Minister, for example, is responsible for determining the broad orientations of the corporation including approving its corporate plan, dealing with appropriations and recommending these to Cabinet. These guidelines do not affect such dealings.
However, the Minister does not become involved in day-to-day operations of a Crown corporation nor does his or her staff. Because of the wide range of activities carried out by individual Crown corporations, the appropriate role of the Minister must be determined on a case-by-case basis.
The following guidelines will assist Ministers in fulfilling their representative duties, while preserving the managerial autonomy of Crown corporations within their portfolio.
- No Minister should personally promote the private interests of any individual, corporation or non-governmental organization, including a constituent, with any Crown corporation.
- It is always appropriate for a Minister to raise the concerns of a constituent directly with the Minister responsible for a Crown corporation.
- The staff of a Minister when dealing with constituency matters may, however, make representations to a Crown corporation.
- The staff of the responsible Minister, because of their special responsibilities in support of their Minister, may not make representations, on behalf of a constituent, to any Crown corporation which falls within their Minister's portfolio of responsibilities.
- It is recommended that the office of the Minister responsible for a Crown corporation establish a procedure, in cooperation with the corporation, to enable the Minister's office to pass on as a referral, for the corporation's appropriate action, representations or enquiries which the Minister or his or her office receive from Parliamentarians, other Ministers or their offices, the Minister's own constituents or, more generally, the public. The Office of the Ethic Commissioner will work with Minister's offices and the Crown corporations in establishing these procedures.
- More broadly, these guidelines do not prevent any Minister or their political staff from social contact with the officers and staff of Crown corporations nor from participating in briefing sessions initiated by the corporation.
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