Responsibility in the Constitution
VI Ministers and Their Departments
The legislative bases for the departments of government make explicit the individual responsibility of the ministers who preside over them, and as has been noted, provide one of the legal bases of the minister's responsibility. The way in which ministers fulfil their responsibilities and are called to account for the exercise of their statutory authority is subject to practice and convention. All departmental acts provide for the formal appointment of the minister by the Crown (informally on the advice of the Prime Minister), set out the powers, duties, and functions for which the minister will be responsible, and give him or her the management and direction (control and supervision) of the financial and public service resources deployed in the department.1 These statutory provisions are given life through the conventions of the constitution, which determine at any given time the way in which ministers fulfil their respective roles and the circumstances of their answerability to Parliament for their actions, and offer further safeguards through the conventional responsibility of ministers collectively.
The individual responsibility of the minister requires that he or she be personally responsible for the activities carried out under his or her authority. This concept is fundamental to the long struggle to impose responsibility on the exercise of power. Parliament has insisted that ministers be directly accountable to it by being part of it. Ministers are, therefore, assailable on a daily basis for their actions and those of their officials. The traditions of civil service anonymity built up in England during the later part of the 19th century, and the creation in Canada of the Civil Service Commission in 1908 to ensure that public servants would be non-partisan, reinforced this principle.
Officials are disqualified from membership in the House of Commons and accordingly may not be held constitutionally responsible by the House. It is worth noting that it was not until the close of the 18th century in England that individuals whom we would recognize as permanent officials were barred from Parliament.2 Indeed, not until this happened was it possible to identify the beginnings of a civil (as distinct from political) service. It is also worth noting that the exclusion of officials from the House and hence from constitutional responsibility for their actions was accompanied by organizational change that had the effect of concentrating the civil service in departments, each presided over by a minister who could be held personally responsible for the actions of his or her officials. This development was marked in the early to middle part of the 19th century by the substitution of the personal responsibility of a minister for the "indefinable and irresponsible authority of boards".3
The subordinate quality of officials as distinct from the responsible estate of a minister is most clearly seen in the two types of boards and commissions that survived these changes. First, there are those such as our Treasury Board that consist solely of ministers. Second, there are boards, such as our Defence Council and the Admiralty Board in England (both now defunct), presided over by a minister personally and solely responsible for the activities of the board whose other members are officials, advising rather than deciding.4
As the number of officials increased, the importance of ministerial responsibility grew proportionately. Today more than ever the actions of civil (or as we now call them public) servants are numerous and often far-reaching in their effect, and the presence of a minister charged with responsibility personally to answer for their actions is essential if constitutional responsibility is to be maintained.5
The principles of responsibility, the concentration of the Crown's power in the hands of ministers, the subjection of ministerial power to parliamentary control, and the limited capacity of Parliament itself to assure the justice of official actions, reinforce the responsibility of ministers, requiring them to be in a position to assure the House that they are exercising power responsibly. The constitutional responsibility of ministers is clear, but their ability to speak confidently of the actions of their officials is a matter for constant attention. It is in this context, and in the light of the history and implications of the constitutional manifestations of responsibility in parliamentary and cabinet government, that the accountability of officials must be considered.
The Deputy Minister
Deputy ministers have duties that reflect the nature of cabinet government. They are the most senior official of their respective ministers, to whom they are responsible. They may, by delegation, exercise virtually all of their minister's powers. The deputy's responsibility to his or her minister reflects the individual and collective responsibilities of the latter, and, because of the significance of the minister's collective responsibility, the deputy also has certain obligations to the Prime Minister and (through the minister) to the ministry as a whole.
The roles of deputy ministers are complex, but they must ultimately unravel to support the responsibilities of ministers, and, as with ministers, the roles of deputies that reflect the individual responsibilities of ministers form the bedrock of responsibility and hence accountability in the system. But the system would be unstable without the collective responsibility necessary to cabinet solidarity, and the deputy must also play a role in and be affected by means that are used to ensure the maintenance of collective responsibility among ministers.
The individual and collective responsibilities inherent in cabinet government create a system that operates through a series of countervailing forces. Balancing the individual responsibilities of ministers encourages consensus and forms the basis of stable ministerial government. The deputy minister, like the minister, faces and must find ways of resolving potential conflicts between the minister's individual responsibility and the obligation to support the collective wishes of his or her colleagues.
In order for deputies to fulfil their roles in a responsible manner and to be held accountable for their performance, it is necessary that deputies understand their role in government and the duties that devolve upon them by virtue of the individual and collective responsibilities of their ministers. Deputies must also have access to means of resolving apparent conflicts between countervailing responsibilities and loyalties within the ministry so that they can function effectively as policy advisers and administrators for their ministers individually, and in doing so contribute to the solidarity of the ministry.6 They must, in short, understand how responsibility in the constitution affects them.
The Deputy and the Minister's Individual Responsibility
Deputies, like their ministers, are provided with a statutory base for their appointment in the departmental statutes. Unlike their ministers they are appointed formally not by the Crown, but by the Crown on the advice of the ministry as a whole. This provision perpetuates the conventional control of the Prime Minister over senior public offices. It also indicates something of the broader role that deputies play vis-à-vis the ministry as a whole.
Although departmental statutes are silent on the subject, the Interpretation Act is clear that the deputy may exercise the power of a (i.e. his or her) "minister of the Crown to do an act or thing" except "to exercise any authority...to make a regulation".7 This statutory interpretation makes explicit the legal accountability of deputies to their ministers that is implicit in the departmental statutes.8
Accordingly, with the authority of the minister, the deputy may exercise the powers of the minister set out in the departmental Act and by extension in the other Acts for which the minister is responsible. The deputy also fulfils the minister's obligation to manage and direct the department and has the control and supervision of the financial, personnel, and other resources at its disposal.9
The duties of the minister are set out in the statutes and are usually very general in character, leaving it to the minister to propose specific means of fulfilling them; these are then presented to Parliament in the estimates for its approval. If the minister wishes to seek an appropriation for a program whose provision is not covered in the general duties set out in the departmental Act, it is usually necessary for the minister to seek the necessary authority through legislation. Normally, however, the duties described in the minister's acts cover a wide variety of functions, ranging from policy formulation and program development to program implementation and departmental administration. These functions, whether policy, program, or administration, may be devolved upon the minister's senior permanent adviser in the latter's quality as the minister's deputy.10
In 1929, during his testimony before the Tomlin Commission on the civil service in England, Sir Warren Fisher, who was then Permanent Secretary of the Treasury, head of the service, and a vigorous opponent of the concentration of authority in central agencies, at the expense of departmental autonomy and ministerial responsibility, summed up the role of a deputy minister and the nature of delegation between a minister and the permanent head of the department with the observation that the permanent head "is not (except by accident) a specialist in anything , but rather the general adviser of the minister, the general manager and controller under the minister, with the ultimate responsibility to the minister for all the activities of the department (and of its officials)".11
The Deputy and the Minister's Collective Responsibility - Policy
The deputy's relationship with his or her particular minister does not stop with the latter's purely individual responsibilities. Through the minister's collective responsibility, the deputy minister has a direct and well-established link between the office he or she holds and the ministry as a whole.
It was noted earlier that as the Crown retreated from active political involvement, and as monarchical government was effectively replaced by ministerial government, it became necessary to find means of stabilizing the provision of a form of government that was based on the collective views and leadership of a group of individuals. The position of Prime Minister and the institution known as the cabinet (and later its structured system of committees and secretariats) emerged as a means of providing such stability. The Prime Minister built his position from the application of his powers over government finance from which (loosely speaking) flowed his ability to control appointments to high office. Control of finance and high office introduced stability to ministerial government, and made possible the evolution of collective responsibility over a 150 year period in the 18th and 19th centuries. The exercise of these powers remains the basis of stable government in the system.
The system depends upon the Prime Minister's ability to promote consensus among his colleagues in two principal areas: the policy of the government, and the management of the financial and hence personnel resources provided by Parliament annually for carrying out that policy. Policy and administration are not, however, mutually exclusive processes. They should be reliant on each other, and the deputy minister plays an important role in ensuring that they are.
The Prime Minister exercises a variety of informal powers most of which are directed to ensuring the solidarity of the ministry. His powers of appointment over ministers and deputies are particularly important and are of principal concern for our purposes. They should, however, be considered with reference to the Prime Minister's duty to promote consensus among his colleagues, for which purpose he provides them with the cabinet, endeavors to set the tone of government and its broad lines of policy, organizes the general structure of government, arbitrates disputes among ministers, and (with or without consulting some or all his colleagues) determines when to seek a dissolution of Parliament.12 The exercise of these prerogatives enable the Prime Minister to promote the solidarity of the ministry and his leadership of the government, and the appointment of ministers and deputies should be seen in this context. Deputy ministers are, of course, responsible to their respective ministers, but their appointment by the Prime Minister reinforces their commitment to ensure the successful functioning of ministerial government.
The tone of government may be set by the Prime Minister and the cabinet, but most of the policies of the government flow from the exercise of the individual responsibilities of ministers. With rare exceptions these policies are initiated by ministers and their deputies, co-ordinated at the official level through a network of interdepartmental committees and by other means, discussed by ministers and deputies in committees of the cabinet, finally resolved by ministers themselves in the cabinet, and given effect through the exercise of the individual responsibilities of the minister or ministers involved. The intimate way in which deputies interrelate with ministers on matters of policy illustrates one means by which deputies support the collective responsibilities of ministers.
The individual responsibility of a minister is virtually always exercised in relation to the individual responsibilities of one or more of his or her colleagues. This is particularly true as government activity has grown and programs have become more complex and interdependent. The function of providing necessary co-ordination usually falls to the deputy and his or her officers, and in carrying it through they find themselves sharing their minister's concern that particular initiatives will be supported administratively by colleagues whose co-operation is essential to success.13 This administrative coordination (referred to earlier in the context of the interaction between officials in support of the responsibilities of ministers in our confederal system) has become increasingly complex since the Second World War. The need to coordinate the responsibilities of several ministers in order to take particular initiatives is now the rule rather than the exception, and this is reflected in the growth of the co-ordinating functions of the cabinet.
Although strictly an unofficial and political body for the forming of consensus among ministers on matters whose substance may be tested in the House to determine whether collective responsibility has been applied, the cabinet is also used to co-ordinate the policy administrative activities of particular ministers whose individual responsibilities must be exercised in concert in order to effect particular actions. These policy administrative (as distinct from political) co-ordinating functions are most obviously manifested in the committee system that supports the work of the cabinet.14 The cabinet committee system requires that all memoranda from ministers be considered by a committee of the cabinet before they are referred to the cabinet itself, and, if they involve new expenditure, the committee reports on such memoranda are referred first to the Treasury Board. The committee and Treasury Board reports are then taken up by the cabinet. At each step, apart of course from discussion in the cabinet, deputies are required to support their ministers, accompanying them to cabinet committees for the discussion of particular items, and, earlier, by smoothing the way through the activities of the interdepartmental committee system as well as in less formal ways. These procedures, and the complexity of the policy issues that they reflect require deputy ministers more frequently than before to support their minister in the exercise of the latter's collective responsibility.
Moreover, the deputy is responsible for ensuring that the "decisions" of cabinet are carried into effect. It is worth reiterating that in our system authority flows from the Crown to ministers individually, and with certain exceptions where the Crown must act on the advice of ministers collectively, most actions are the personal responsibility of a particular minister or ministers. The "decisions" of the cabinet have political and administrative rather than legal effect, and their enforcement is left almost entirely to the minister or ministers directly responsible. Indeed, proposals to vest the Privy Council Office and the Treasury Board Secretariat with "follow-up" authority have generally been regarded as incompatible with ministerial responsibility and alien to the informal and political functions of the cabinet in the system. In a very real sense, therefore, deputies are relied upon to exercise the responsibilities conferred on them by their particular ministers in accordance with the consensus formed by all ministers in support of the collective responsibility of the ministry.
The Deputy and Minister's Collective Responsibility - Management
Important as are their policy advisory and co-ordinating functions, deputies have a special responsibility for the management of resources, and here in practice they act almost entirely in the place of their ministers.15 In supporting their minister's individual responsibility by managing departmental resources to produce policies and programs, the deputies observe management standards that have been prescribed by ministers collectively and which are judged essential to the unity of the ministry. These standards are established by the Treasury Board and flow directly from its power of finance in the reconciliation of estimates.
It was noted earlier that finance was one of the principal tools used to establish the position of Prime Minister and hence the collective responsibility associated with modern cabinet government. The evolution of the constitution in the 18th century contributed a number of practices that have since taken on the force of convention and in some cases of law, and which have reinforced financial control (and hence the maintenance of particular management standards) as an essential aspect of collective responsibility. Foremost are the rules that the Prime Minister will approve the measures that will be presented to Parliament,16 that estimates must be presented on behalf of the Crown as the agreed proposals of the government, and that only the ministry may propose money bills.
The necessity that the ministry approach Parliament for funds as a collectivity requires that in reconciling estimates the Treasury Board set management standards in accordance with which each minister's statutory responsibility for the management and direction of his or her department, and for the control and supervision of the personnel, financial, and other resources deployed within it, must be exercised.
The role of the Treasury Board as a committee of departmental ministers advising ministers collectively on the content of the estimates does not diminish the individual responsibility of the minister to Parliament to administer his or her department and its programs with the funds appropriated each year for these purposes. It is indeed essential to constitutional responsibility that ministers (acting through their deputies) manage and direct their own departments. Nonetheless, the requirement that ministers manage their departments in accordance with centrally prescribed standards and practices imposes a particular obligation on deputies to ensure that this aspect of their minister's collective responsibility is adequately supported.
Because much of finance is a matter of policy, the financial functions of the Treasury Board are of direct concern to ministers working closely with their deputies in the essential task of reconciling estimates, which in turn is central to the establishment of collective responsibility. Once resources have been allocated, however, the management of the department and the observance of centrally prescribed management standards must in practice fall almost exclusively on the deputy minister, even though in law the minister is responsible.
The deputy must endeavour to administer the minister's department in order best to serve the application of existing policies and programs and their future development as well as the concern of the ministry as a whole that adequate financial and other management standards are observed. The interaction of these requirements, like the reconciliation of the minister's individual and collective responsibilities, should enhance rather than conflict with the ability of the deputy to manage effectively. In the extreme, of course, if the deputy cannot reconcile the requirements of the administration of the department and its programs with centrally prescribed standards and practices, either the deputy must go or the centrally prescribed standards must be adjusted.
It is evident, however, that just as cabinet government is devoted to the development of consensus among ministers that will reconcile their individual and collective responsibilities, so there must be a reasonable balance struck between the administrative needs of a minister's department and those of the ministry as a whole as determined on its behalf by the Treasury Board. Because it is essential to constitutional responsibility that ministers (through their deputies) manage their own departments, and because they do so in accordance with certain standards judged necessary for sound management and hence the unity and survival of the ministry, it is also essential that ministers as a group have an adequate voice in the establishment by their colleagues in the Treasury Board of the standards and practices that they will be required to observe in their departments. In addition, because management falls almost exclusively on the shoulders of the deputy, it is necessary that as a group, deputies be in a position to influence the central standards that they will be required to implement and for whose observance they will be held accountable. For the Treasury Board's Secretariat, as for other central agencies, this requires that a delicate balance be struck so that the constitutional requirement that each minister manage the public service resources deployed in his or her department will be reinforced and not weakened by the conventional requirement for the establishment and observance of centrally prescribed management standards. Above all it is essential that central agencies conscientiously avoid any action that would have the effect of arrogating to them the line responsibilities of ministers, whether in matters of policy or of administration. The danger of this sort of thing occurring is greatly increased if the standard-setting role of central agencies becomes control-oriented, and the best means of guarding against this happening is to ensure that equilibrium is maintained throughout the system. In management matters, responsibility for the maintenance of this equilibrium must be shared between deputies and the appropriate central agencies, each acting on behalf of ministers, and each recognizing that the management of the public service is the special responsibility of the deputy minister.
The balance between the management of the public service by ministers and deputies, on the one hand, and the observance of central standards, on the other, or between the minister and the Treasury Board, or between deputies and the Treasury Board's Secretariat, tends to force the participants at each level to justify their actions. If however, the rule-making habits of central machinery lead central agencies to proliferate central standards, or if they become control-oriented, there is a danger that the individual responsibility of ministers and deputies (on which the system is built and from which accountability flows) will be eroded. Experience in the central control of resources, especially in the financial area in the period 1931-1967, indicates that unless ministers and their deputies have an adequate voice in the management of departments it is difficult to hold them accountable, and in the absence of accountability central control becomes inevitable.
- In theory, ministers may be said to have the "management and direction" of their departments for which purpose they have the "control and supervision" of the public service resources deployed within it. In practice, however, the phrases are used interchangeably in the statutes, which support neither this nor any other distinction.
- Parris, Constitutional Bureaucracy page 34. The membership of these "officials" indicated that the part of the Act of Settlement of 1701 that barred office holders from the House of Commons was a dead letter.
- Birch, Representative and Responsible Government page 141.
- When the Board of Admiralty was reconstituted in the 1860's the ministerial responsibility of the First Lord was made explicit, he being empowered to decide "without reference to any vote or equality which may exist under the present board system". Parris, Constitutional Bureaucracy page 93. These comments do not, of course, apply to boards and commissions that have been separated from the purview of ministerial responsibility because they fulfil regulatory, quasi-judicial, or related functions.
- Sir William Harcourt, a 19th century British Chancellor of the Exchequer, described this relationship as between ministers and officials more tersely: "The value of the political heads of departments is to tell the permanent officials what the public will not stand." A.G. Gardiner, The Life of Sir William Harcourt (New York, n.d.) vol. ii, page 587.
- The cabinet is an instrument that provides ministers with such means for the resolution of matters of common interest to them. Deputies (and to a degree ministers) rely in part on senior interdepartmental committees for this purpose, and central agencies have a particular responsibility to use these committees and other means (such as encouraging deputies to consult bilaterally with their opposites in charge of the central agencies) to assist deputies in solving multi-jurisdictional problems.
- Revised Statutes of Canada (Ottawa, 1970) vol. iv, c. 1-23. Nor may a deputy substitute for his or her minister in the latter's role as spokesperson in the House of Commons.
- The congruence between what is explicit in statute law and what is implicit in the law and custom of the constitution is worth noting because it is not always the case. Custom is composed of practice whereas law may set a precedent, and in administrative matters our system usually prefers to let precedent evolve into practice before thought is given to casting into law the practices that have prevailed as a matter of custom. In administrative matters the law of the constitution usually evolves in this cautious manner, but not always, and sometimes precedent established at a given moment as a matter of law is at variance with the custom that has evolved through long-standing practice.
- In practice, however, the deputy does not sign Treasury Board submissions involving new money or matters of policy. By custom and as a matter of policy these must be signed personally by the minister, which provides another manifestation of the practical exercise of his or her individual responsibilities. See Treasury Board Circular 1968-71, 18 September 1968.
- There are certain exceptions to the rule that deputies act as agents of their ministers. Sections 24, 25 and 27 of the Financial Administration Act place certain financial duties directly in the hands of deputies, and section 7 of the same Act empowers the Treasury Board to delegate to deputies any of its powers and functions having to do with personnel management. Section 6 of the Public Service Employment Act gives similar powers of delegation to the Public Service Commission. These are significant exceptions that emphasize the special management responsibilities of deputies. There are also certain other acts that confer directly on deputies (and for that matter other officials) powers that are thought undesirable for ministers to be required to exercise.
- See Jennings, Cabinet Government page 96. This was an accurate statement of the deputy's responsibility in a ministerial system and therefore significant coming from the Treasury with its centralizing tendencies. Fisher had sharply reminded the Commissioners that he was not by background a "Treasury man"; see Roseveare, The Treasury page 253.
- See Jennings, Cabinet Government ch. viii, esp. pp. 153-154. In a departure from custom, Sir Charles Tupper in 1896 sought to impress his authority on his colleagues by having Council adopt a minute enumerating the powers of his office. In brief, the minute stated that the Prime Minister called meetings of the cabinet, recommended the dissolution and convocation of Parliament, and the appointment of Privy Councillors, ministers, deputy ministers, lieutenant governors, provincial administrators, chief justices of all courts, the Speaker of the Senate, senators, membership of the Treasury Board and cabinet committees, and parliamentary appointments in the gift of the Crown. The minute also made the interesting assertion that whereas a minister could not make a recommendation affecting the discipline of a colleague, the Prime Minister could make recommendations in any department (Minute of the Privy Council, 12 May 1896). The minute was reissued substantially unaltered by Messrs. Laurier, Meighen, Bennett, and King. Although not reissued since, it is now regarded as conventionally established. See also Mallory, The Structure of Canadian Government pp. 87-88.
- This administrative co-ordination, as distinct from political consensus forming, is not strictly speaking an integral part of collective responsibility. In theory, coordination may necessarily extend only to those of a minister's colleagues whose administrative co-operation is required to carry forward an initiative. The line, however, between administrative and political co-ordination is seldom precise, and with the growth of governmental activity and the increasing use of the cabinet for administrative as well as political co-ordination, it has become increasingly difficult to make this distinction.
- For a description of the committees and how they operate, see R. Gordon Robertson, "The Changing Role of the Privy Council Office" Canadian Public Administration (1971) vol. xiv, no. 4. The structure of the committee system is largely unaltered, and the process is as described by Mr. Robertson except for the role now played by the Treasury Board.
- See above pp. 59-60.
- Anson takes the view that the Prime Minister has a "decisive voice in the measures to be submitted...to Parliament"; Law and Custom of the Constitution vol. ii, pt. i, page 124. Jennings is less sweeping, noting "If, as is usual, he is leader of the House of Commons, he is, subject to the determination of the priority of proposals by the Cabinet, in control of the business of the House, through the Government Whips"; Cabinet Government page 155. In Canadian practice, the Prime Minister (or in his absence the next most senior Privy Councillor of the ministry) signs draft bills before they are introduced in Parliament. This procedure may be said to reinforce the Prime Minister's "decisive voice" in determining the government's legislative program.
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