Responsibility in the Constitution
IV Canadian Adaptation and Practice
The Fabric of the Constitution
The British North America Act, enacted at Westminster in 1867, is Canada's basic constitutional document. The Act created Canada's Parliament and provided for an executive government in the Governor General exercising the powers of the Crown on the advice of the Privy Council. Although the Act says little else about the executive, it implies the then well established conventions of the British constitution requiring the Crown to act on "advice".
The Act presupposes, and its preamble makes clear, that as a constitutional document it must be taken in conjunction with the body of precedent and Common Law from which it itself emerged.1Accordingly, the BNA Act does not specify the responsibility of the ministry to Parliament, the office of Prime Minister or the powers of that office. The Act did, however, define the composition of Parliament, and in that it assumed that in the exercise of executive authority the Crown would be responsible to and dependent upon the approval of the Senate and the House of Commons. Indeed, not only did convention demand that the ministers answer to the House of Commons for the advice given the Crown, but the responsibility of the ministry before Parliament may be said to have been implicit in the Act. In these respects the BNA Act reflected most of the more important conventions surrounding the individual responsibilities of ministers for their actions.2
The Act acknowledged in law the control of the House of Commons over taxing and spending. It also established in law that spending proposals could only be made by the Crown.3 These essential aspects of the supply procedure indirectly introduced into the law an element of collective ministerial responsibility, which by the mid-19th century had begun to take a firm hold in the constitution through the convention that spending proposals must come from the government as a whole, and through the special unifying role that was the raison d'être for the Prime Minister and the emergence of the cabinet. Each of these conventional rules was to have an important influence on the development of responsibility in the constitution.
Although the Canadian constitution was provided for in the BNA Act and the constitutional practice and custom of Westminster's traditions and the body of English Common Law, Canada already had a body of constitutional experience upon which to draw, dating from the colonial period. The development of local self-government in Britain's settled colonial possessions during the middle part of the 19th century following the dismantling of the old and unrepresentative colonial system was marked by the establishment of miniature replicas of the Queen's government, which in the principal provinces of British North America, the Australian states, and New Zealand was reproduced in the form of a governor, executive council, and legislature.
Eventually these arrangements came fully to respect their origins in England's constitutional history, their underlying purpose being to carry forward the principle of constitutional responsibility for the exercise of power. More particularly, and after some struggle, the principle of ministerial responsibility became the centrepiece of these colonial arrangements, the members of the executive council being individually responsible to the legislature with the governor acting on "advice".
A colony was, nevertheless, not an independent state. The governor, although the representative of the constitutional Crown, was answerable to the Crown's advisers in Whitehall. In matters other than local government, or when doubts arose about the powers of a colonial administration to take specific actions, the governor might be required to act on the instructions of the Colonial Secretary at Whitehall rather than on the advice of his executive council. Direct intervention by Whitehall would, however, have been " at variance with the acknowledged principles of ministerial responsibility within the colony in all matters of local concern". 4 Although constitutional responsibility was achieved only after some struggle with colonial governors and Whitehall, once established respect for the principle had particular consequences for the role of colonial legislatures and later for the parliaments that were established when the former colonies achieved independence through dominion status.
The potential conflict between the governor's instructions from Whitehall and the advice of his executive council (and the consequent threat to the responsible exercise of power in the colony) was largely avoided by requiring executive councils to exercise the authority of the Crown through the legislature rather than by virtue of the prerogative, and through the related practice of disallowing colonial legislation. Ministerial responsibility vis-à-vis the legislature was in no way trammelled if a proposal of a minister was approved by the legislature, and the action of the legislature subsequently disallowed by the Imperial Crown. As Alpheus Todd has noted:
The supremacy of the Crown over colonies which possess representative institutions, and have been further intrusted with privileges of local self-government by the incorporation into their political system of the principle of responsible government, is ordinarily exercised only in the appointment and control of the governor as an Imperial officer, and in the allowance or disallowance in certain cases of the enactments of the local legislatures.5
This procedure for ensuring the constitutional responsibility of colonial ministers to colonial legislatures gave the latter a greater role in administrative and other matters than was enjoyed by Parliament at Westminster, where such arrangements were usually carried out on the authority of the royal prerogative without reference to Parliament.
The pattern established in the colonial period was followed after Canada achieved dominion status, and although disallowance by Whitehall of the Canadian Parliament's legislative proposals was for most practical purposes a dead letter after 1867, the tradition was preserved of calling upon Parliament to act in a wide variety of administrative matters including the organizational framework of the public service and the standards by which it is managed.
The Structure of Government
Canada's colonial heritage provided from the outset that the dominion government would seek to use the law-making rather than prerogative authority for major new organizational forms and important administrative matters. In accordance with the practices described earlier, the provinces of British North America had sought legislative bases for their major administrative units, and these (particularly those of the Province of Canada) were carried forward, elaborated, and added to by the new federal Parliament.6
Parliament has provided a legislative base for each department of government, and it authorizes the payment of salaries to ministers. Each minister is individually responsible for his or her department. The system is built on this individual responsibility and revolves around twenty odd program departments whose ministers are responsible for the greater part of governmental spending. These are the ministers whose activities in Parliament and the public service provide the essential basis of ministerial government and from whom accountability for the exercise of power through the expenditure of public monies is sought by Parliament.7
The relationship between ministers is confederal in character. Each represents particular interests - departmental, regional, constituency, political, and so on. In the dignified constitution ministers are sworn to the Privy Council to advise the Governor General in the fulfillment of the Crown's duty to exercise the executive powers.8 In the efficient constitution ministers are appointed to office by the Prime Minister and they exercise their individual functions in concert with the functions of their colleagues, and do so through the instrument of the Prime Minister's cabinet. The confederacy of independent ministers is made workable through the convention of collective responsibility. The convention is reflected in the activities of each minister, and ministers who preside over the spending departments are assisted by colleagues, whose functions are principally co-ordinating in character. As might be expected, given the origins of collective responsibility in the system, principal among these co-ordinators are ministers who exercise special powers over matters of finance and, in the case of the Prime Minister, appointment to high office.9
The system faithfully reflects the evolution of constitutional responsibility stretching back to Magna Carta and beyond. Ministers, individually responsible for their expenditure of taxes are co-ordinated in these activities by colleagues whose function is to ensure the maintenance of solidarity within the ministry through the cultivation of collective responsibility among their colleagues.
Each minister's actions reflect the individual and collective responsibilities of the system that has been built up to ensure that they and their subordinates in the public service exercise power in a manner acceptable to a majority of the elected house of Parliament. Ministers are held accountable for the exercise of power by their colleagues internally and publicly each day in the House of Commons. 10 The accountability of ministers to Parliament is the cornerstone of our constitutional system and the essence of the historical precedents that require individuals personally to answer to the House of Commons for their use of power. The collective responsibility of ministers is also tested each day in the House, and this conventional need for unity imposes an additional discipline on ministers, requiring them to account internally to each other for the exercise of their individual authority.
Throughout the system of government individual responsibility is sharpened by the requirements of collective responsibility. Each level of the bureaucracy reflects the confederal nature of the system, which builds up through the bureaucratic hierarchy to the level of ministers. It is a process that seeks constantly to resolve conflicting interests arising from the independent powers that flow from each minister's individual authority.
In theory, ministers are independent members of the confederal system that they themselves constitute. In practice, their independence is constrained by the need to find accommodations with their colleagues. The system is, therefore, based on a collective leadership, whose constituent elements seek constantly to establish and maintain a state of equilibrium. Ministers are supported throughout by a public service, which must also seek constantly for a balance between the interests and powers of the confederacy that it serves. The resolution of conflict is a constant and necessary concern of ministers, and is fundamental to ensuring that ministers exercise the power of the state responsibly. Extreme views, or initiatives that ignore the responsibilities of others in the system, threaten its essential equilibrium.
Our system of government is not compartmentalized as between the government and Parliament. The executive is composed of Members of Parliament and is therefore not separate from Parliament. In order to provide sound government, ministers will endeavour to accommodate views based on differing responsibilities and interests, and to a large extent Parliament relies on the collective responsibility of the ministry to ensure that the responsibility of each minister is being exercised fairly and effectively. Indeed, the tension inherent in the search for equilibrium among differing functions and interests within the confederacy of ministers is essential to collective government by ministers, and without it Parliament would not have confidence in the government. As was noted earlier, Parliament historically has relied in part on the ministry itself to ensure responsible government. It expects ministers to answer for the way they discharge their duties, but Parliament does not itself seek to order the day to day affairs of government. This reliance on internal self-discipline is made possible by collective responsibility, and as the tasks of government grow more complex, the inter-reliance of ministers increases, providing additional checks on the exercise of the power vested in each.
- The preamble reads in part: " Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom.... And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also the Nature of the Executive Government therein be declared..." The British North America Act 1867, 30° & 31° Victoriae, cap. 3, 29 March 1867.
- The South Africa Act of 1909 was more specific about the organization of the government taking the summary of constitutional developments further than the BNA Act. Section 14, in particular, refers to departments of government being headed by ministers, who shall be members of the Executive council.
- This provision had also appeared in the Act of Union of 1840 that created the Province of Canada.
- Alpheus Todd, Parliamentary Government in the British Colonies 2nd edition, (London: Longmans, Green, 1894) page 200. In British North America, more precisely in the provinces of Canada and Nova Scotia, ministerial responsibility was established in the 1840's during the decade following the Durham Report.
- Alpheus Todd, Parliamentary Government in the British Colonies pp. 107-108.
- For another aspect of the influence of our colonial experience on the development of the post-confederation public service, see J.E. Hodgetts, The Canadian Public Service (Toronto, 1973) pp. 55-58. It should also be noted that in 1867 the dominion government took over intact the institutions of the former Province of Canada, the BNA Act having made separate provision for the reestablishment of the former provinces of Upper and Lower Canada in the sections of the act dealing with Ontario and Quebec.
- It was noted above (page 4) that collective as opposed to individual responsibility is primarily conventional rather than legal in character. Legal collective responsibility is in fact reflected extensively in the law of the constitution. Action in the system is taken either by ministers individually or by the Crown on the collective advice of ministers. In each case the authority for action may reside either in powers bestowed by the Crown in Parliament or in the prerogative. Ministers have always been individually responsible for their departments, but until the end of the second world war it was common practice to require ministers to take specific actions only with the approval of the Governor in Council. The reasons for this were political and to some extent reflected successive Prime Ministers' apprehension about the ability of colleagues to exercise powers prudently. In a limited way the requirement had the effect of introducing into the law of the constitution the conventional political function of the cabinet in seeking to maintain collective responsibility. The effect was limited, however, because the formal collective decisions required were largely administrative in nature having to do with contracts, appointments, and other matters of similar interest. As Professor Mallory has noted, the need for such formal vetting of administrative decisions declined as patronage became a less prominent feature of government; see The Structure of Canadian Government (Toronto, 1971) page 104. Today, legal responsibility devolving on ministers collectively through the Governor in Council is reserved for important matters in which the government wishes to demonstrate formally action or advice that has been sanctioned by all ministers. Apart from the public nature of an order or minute of the Council, this device enables the government to provide legal evidence that action has been taken by the government, which contrasts with the more usual situation in which a minister acts on his or her individual authority having where appropriate informally secured the approval of the cabinet. In such cases the action is the minister's, cabinet having played its political function of ensuring that the minister will be supported by his or her colleagues. Action by the Governor in Council is formal action taken by the government and can be proven legally by production of an Order in Council to a court of law. Action by a minister may be equally formal and can be proven in law, but the fact of cabinet approval does not indicate any formal sharing of the minister's personal responsibility. Nor because of cabinet confidence would it be desirable for evidence of cabinet decision to be used to indicate that the minister's action was in fact the action of the government.
- This provides one of the legal bases of the responsibility of ministers. The statutes that Parliament has enacted providing for their offices form the second legal basis for their responsibility. See above page 4, footnote 3.
- Co-ordinating ministers are also to be found in areas such as external and urban affairs, common services, and science and technology.
- A recent Prime Minister of England has described the trepidation with which ministers prepare for question period, which he refers to as the "high tribunal of the nation" . Unlike the practice at Westminster, in Canada ministers do not receive notice of questions and must answer in the House every day rather than from time to time. See Sir Harold Wilson, The Governance of Britain (London, 1976) page 133ff.
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