Conduct During Elections: The Caretaker Convention





By Karl Salgo - Executive Director, Public Governance



During federal elections, the fair city of Ottawa experiences an uncharacteristic tranquility just as the rest of the country contends with intensified political noise. It is not simply that the politicians have gone on the road (thank heaven for small mercies) but also that the government is doing a lot less than usual (ditto perhaps). For as soon as “the writ is dropped” both the ministry and the public service are, by longstanding convention, constrained in what they can do.

The Convention of restraint

You’ll hear this practice variously described – the terms caretaker convention and convention of restraint being the most common. I would argue that convention of restraint is generally the more accurate term, and that “caretaker” in its strictest sense describes a government that has already lost an election.

Attentive students of electoral history will discover that this is one area where theory is reasonably well respected in practice, with only occasional faux pas to mar the record. In fact, they’ll discover that the scope of restraint has, if anything, intensified over the decades. Moreover, for some years now the government has provided election conduct guidelines for ministers, their staff, and public servants, which it made public for the first time in 2015.

In very broad terms there are two drivers for ministerial restraint during elections:

First, in our system the executive must always be accountable to the legislature. Once Parliament has voted no confidence or has been dissolved, this accountability relationship has ceased to operate.

Second, the resources of the state (including the public service) are not to be used for partisan purposes; this is an especially important principle for the incumbent in a democratic system.

In addition to the responsibilities of elected officials, public servants have a responsibility in their own right to remain politically neutral – at least to the extent necessary to credibly discharge their responsibilities to governments of whatever political stripe. This responsibility is now governed by legislation and administered by the Public Service Commission, as discussed below.

How much restraint?

What is the scope of this restraint? There are multiple characterizations, but boils down to this: in matters of policy, expenditureand appointments, the government should restrict itself to necessarybusiness – necessary either because it is routine (like operating public infrastructure, paying bills, and maintaining normal public services) or because it is urgent (like dealing with a natural disaster or comparable crisis). In the latter case, the government should still avoid to the extent possible making decisions that are controversial or that would be difficult for a successor government to reverse. In such cases, consultations with the other party leaders would likely be in order.

Of course, there are lots of gray areas. Is it necessary for ministers to withdraw from pre-scheduled international conferences? It depends – one consideration would be whether it could be perceived as exploiting incumbency for political publicity. Should all appointments cease? I would argue there’s no reason to stop the routine appointment of career public servants to senior foreign postings. And questions are often raised around decisions made prior to an election call that have not yet been implemented. In practice, governments have been increasingly inclined to keep official business to a minimum and focus on election campaigning. For example, Cabinet and its committees seldom meet during an election, functional meetings of the Treasury Board being an understandable exception.

In navigating through all this, it’s important to remember that we’re talking about a constitutional, or at least a political, convention. Legally, a government retains full authority to govern until such time as a new ministry is sworn in. No court would reverse an executive action only because it violated the restraint principle. However, the role of the Governor General is a bit subtler. For instance, constitutional scholars defend Governor General Aberdeen’s refusal in 1896 to make appointments recommended by the defeated Charles Tupper (whom he really disliked) shortly before the transition to the ministry of Wilfrid Laurier. It would thus seem that a GG isn’t necessarily bound by the advice of a prime minister who has lost the confidence of the House or been defeated in an election.

Using government resources

While broad government action is the subject of convention, in certain important areas restraint is mandated by formal policy or law. For example, the principle that Government of Canada resources (including the work of public servants) may not be used for partisan purposes is manifest in a range of Treasury Board policies as well as legislation. Government departments, led by the Privy Council Office, typically place tight and explicit limits (as in how many cell phones) on the materiel and personnel support available to ministers for conducting official government business during elections. Special vigilance is generally considered needful around communications support such as speechwriting.

Ministerial staffers for the most part abandon their offices to go on the hustings. This is entirely appropriate, provided they take a leave of absence without pay – the basic rule being to do these things on the staffer’s own time and the party’s money.

Parliamentarians, as such, are not part of the government even when they are members of the government caucus. It’s worth noting though that Members of Parliament actually lose their status when Parliament is dissolved. Lest you worry how they’ll pay their bills, take comfort that the Parliament of Canada Actenables them to collect their salaries for the duration of the election. And in practice they still attend to the interests of their constituents. And in case you’re wondering how the government pays itsbills when the House isn’t there to vote supply (known to most of us as money), this is provided via an executive instrument known as Governor General’s special warrants, which enable the President of the Treasury Board to spend public money without parliamentary appropriation during urgent situations such as elections. Unfortunately for governments which would rather not contend with the House, these warrants can only run until 60 days after the return of the writ.

Public servants: political neutrality and the law

Public servants are required by longstanding principle to discharge their duties without political partisanship – reflecting the Westminster tenet that the public service should be able to credibly serve successive governments, whatever their political orientation. The requirements of political neutrality are enshrined and reinforced by the Values and Ethics Code for the Public Sector, which is a Treasury Board policy mandated by and closely linked to the operation of the Public Sector Disclosure Protection Act.

That said, in an electoral context the activities of public servants are governed principally by the Public Service Employment Act (PSEA), administered by the Public Service Commission (PSC). This legislation seeks to balance, as the Supreme Court has said must be done, the requirement of political neutrality against the basic democratic right of public servants to participate in the political process. The driving principle is that any political activity must not impede the capacity of the public servant to discharge his or her responsibilities. Accordingly, what is permitted depends on the circumstances, taking into account both the nature of the political activity and the public servant’s responsibilities. Political activity is defined in the PSEA to encompass everything from voting, to putting a sign on your lawn, to contributing to a party, to running in an election. If you’re a deputy head it’s easy to figure out what political activities are permissible: absolutely none except casting your ballot. But individuals whose roles are lower profile and less politically sensitive – for example, those with exclusively technical responsibilities – may be permitted much more leeway, up to and including running for political office. How do you know what’s permitted for you? You can try reading the legislation yourself, but if in doubt you have only to contact the PSC for authoritative guidance.

Election 2019

The principles governing the activities of governments and officials, though multi-faceted, are well established and have remained largely unchanged over the years. That said, successive governments and public service leaders have applied them with varying degrees of stringency. In one recent election, the public service leadership was criticized for going too far, as public servants cancelled everything from routine meetings to attendance at professional seminars. The approach for Election 2019 remains to be seen, but my guess is that the goal will be to remain beyond reproach, which presumably includes adhering to the dictates of common sense.