Responsibility in the Constitution
I The Constitutional Responsibility of Ministers
Responsible government in Canada is based on the individual and collective responsibilities of ministers to Parliament. Ministers of the Crown, charged with the duties of office, are answerable to Parliament, and they may remain in office only so long as they retain the confidence (i.e. support of a majority) of the members of the House of Commons. In our system of parliamentary and cabinet government, ministers are constitutionally responsible for the provision and conduct of the government. This is to say that through the law and the convention of the constitution, power and hence responsibility are concentrated in the hands of ministers. Ministers exercise power constitutionally because the law requires it and Parliament and their colleagues in the ministry hold them responsible for their actions under the law.
The constitutional responsibility of ministers does not limit the obligation of other office holders to obey the law; rather it assures that Parliament may focus responsibility for the conduct of government on those of its members who hold ministerial office and who in the ultimate must personally answer to Parliament and thence the electorate for their actions and the actions of their subordinates. The constitutional responsibility of ministers enables Parliament to satisfy itself that power is exercised responsibly throughout the system of government.
Our system of government, deriving from British and pre and post confederation practice, is ministerial in character. Ministers, in their capacity as advisers of the Crown, are individually and collectively responsible for most activities of government.1 Their individual responsibilities are mainly legal in character. Principally, they exercise powers bestowed upon them by the Crown in Parliament and hold office at the pleasure of the Crown. The exercise of these powers, for which ministers are constitutionally responsible to Parliament, provides the foundation of responsible government. The collective responsibility of ministers is, on the other hand, primarily conventional rather than legal, providing the stability and unity essential to the conduct of ministerial government.2
Individual ministerial responsibility, i.e. the personal responsibility of the minister, derives from a time in history when in practice and not just in theory the Crown rather than ministers provided the government, and ministers merely advised the sovereign and were legally responsible to the Crown for their actions. Today, this legal individual responsibility of ministers reflects the theory and law of the constitution and remains a practical force because of the conventional responsibility of ministers to the House of Commons and the statutory basis on which ministers are charged with the administration of the public service. The individual responsibility of ministers also provides the basis for accountability throughout the system.3
Collective ministerial responsibility, a complex arrangement involving the personal responsibility of each minister and of ministers as a group, is of recent vintage in our constitution, dating back not much more than 100 years. It evolved as a means of providing stable government within the framework of the existing structure of ministerial government after the Crown had ceased itself to be the motive force of government. Ministers replaced the sovereign as the decisionmakers of government, and collective responsibility made effective the collective leadership of ministers. However, because collective responsibility is conventional and recent rather than legal and ancient, its significance in terms of accountability in the system is indirect, though nonetheless essential.4
The nature and importance to the system of the constitutional responsibility of ministers are not well understood and the continuing effectiveness of ministerial responsibility is sometimes questioned. In fact, the operation of ministerial responsibility does not differ widely in current practice from that of 200 years ago when it first became clearly distinguishable in the constitution, which is to say that it has generally operated in and reflected a political context.5
Ministerial responsibility is a fundamental principle of the constitution. It requires that a minister be personally answerable to the House of Commons for the exercise of power. Because the House determines the circumstances in which it operates, the principle has the flexibility necessary to deal with an infinite variety of situations in the widest of circumstances.
The principle of ministerial responsibility provides the foundation of our constitutional system for the control of power. It vests ministers with constitutional responsibility to Parliament that is unique to them and distinguishes them from others who hold office under the Crown. The principle governs the responsible use of power, and does not rely for its effectiveness on the application of the ultimate sanction of loss of office. Instances in which ministers have been required to resign have been relatively few.6 The fact that ministers will probably not lose office as the result of the exposure of a particular instance of mismanagement, or even the misuse of authority by officials, does not detract from their constitutional responsibility or their obligation to ensure that such instances do not occur. Indeed, this responsibility is honed by the ever-present possibility that in particular circumstances ministers may be embarrassed, suffer loss of prestige weakening themselves and the government, jeopardize their standing with their colleagues and hence their political future, or even be forced to submit to public enquiry possibly resulting in censure and loss of office as a result of the way in which their power has been used. These possibilities underpin the constitutional responsibility of ministers, which forms the basis for accountability throughout the system.
The Evolution of the Constitution
Canadians live in a political system that has evolved over centuries in response to the need to control power. Government is a means of organizing the control of power, and however complex society and its problems may be, the responsible exercise of power is in the long run fundamental to the solution of national problems and the stability and well-being of society.
The need to control the exercise of power by the state is basic. The means we have chosen are also basic: the vesting of constitutional responsibility in ministers. To know and understand our history is to articulate the system according to which we are governed, to realize that it is a system, and that to change it in some particular way requires that we understand how that particular relates to the generality of our practices, why it is there, what consequences will flow from change, and what other changes may be necessary to ensure the integrity of the system as a whole.
It is essential, therefore, that we know our history and understand the origins of our practices. They provide a framework within which solutions to current complexities should be sought, or, if inadequate, they provide a point of reference for workable and hence worthwhile reform of the system.
Personal accountability provides the foundation of our system of parliamentary and cabinet government. It derives from the individual responsibility of ministers, which is in essence personal as opposed to institutional. It is shared with no one. It is the minister, not the office, who is responsible, and it is this that vests in each minister the unique constitutional responsibility for the use of power.
The origins, evolution and nature of each minister's constitutional responsibility, and the impact upon its exercise of the means whereby collective responsibility is derived from the individual responsibilities of ministers, summarize the essence of our system of government and provide the parameters within which accountability may be sought.
- In law, the Crown in Canada is the Queen represented by the Governor General.
- For an excellent discussion of the distinction between the law and the convention of the constitution, and of the process whereby precedent evolves into practice and practice becomes convention, see Sir Ivor Jennings, Cabinet Government, 2nd edition, (Cambridge 1951) pp. 1-13.
- For a discussion of the legal basis of ministerial responsibility, see A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edition., (London, 1964) pp. 325-327.
- As collective responsibility and the means of achieving it modify the individual responsibilities of ministers, so accountability for officials, which is centered on the individual legal responsibilities of ministers, is affected by the essential requirement for unity within the government that is the raison d'être of collective responsibility.
- For example, the circumstances in which a minister may lose office or come close to doing so are a matter of political judgement and bear little relationship to whether a minister had prior personal knowledge of the events for which he or she is being held responsible.
- For extensive discussion of this matter see A.H. Birch, Representative and Responsible Government (London, 1964) pp. 139-149; and S.E. Finer, "The Individual Responsibilities of Ministers" Public Administration vol. xxxiv, 1956.
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