Paul Martin is a former prime minister. Errol Mendes is a professor of law at the University of Ottawa and editor-in-chief of the National Journal of Constitutional Law.
More than month has passed since Canadians elected our 42nd Parliament. With a fresh beginning comes an opportunity to review the manner in which our public institutions are governed and the role the public service plays in our country.
Canada's constitution is based on strong and responsible government. However, a government's actions are not only based on the rule of law, but on conventions that flow from the evolution of our democratic values. With the new Parliament, we will have the opportunity to strengthen government accountability and transparency through adjustments to the governance systems and structures already in place. Achieving the change that is required to restore our system doesn't require a radical reinvention of those systems; however, it does require respect for the conventions that make our system work.
Take Question Period. It's meant to provide Parliament with a forum to challenge policy decisions and actions. Of late, Question Period had become an exchange of nonsensical attacks where ministers' answers did not even provide an intelligent, if evasive, response. Question Period is based on the convention that the executive is accountable to all elected members of the House of Commons. Repetitive, off-topic talking points and personal attacks are hardly forms of accountability.
Similarly, while omnibus budget bills are not new, they have become grotesque in the desire to avoid transparency in a wide range of non-budget issues. Further, the foundation of Parliament stems from the principle of "no taxation without representation." The extent to which omnibus budget bills have now been taken clearly violates that principle, as members of Parliament are not given the opportunity to understand the implications of proposed financial changes, let alone debate them.
By the same token, the noose put around the necks of Parliamentary committees – effectively strangling their ability to question witnesses and to debate issues – breaches another foundational convention of responsible government: one that speaks to the importance of Parliament and the rights of its members to partake in the legislative process without suffocating constraints. The same breach of the rights of Parliament could be said about the practice of issuing important announcements that should have been announced in the House of Commons in the light of day, but instead are done when Canadians are least likely to be paying attention to them, such as a Friday afternoon before a long weekend.
In the same fashion, the muzzling of scientists that has taken place over the past several years breaches a convention that the work of government scientists stems from the public interest and thus should be transparent and protected from unwarranted political interference.
And what is one to make of the announcement of the Trans-Pacific Partnership (TPP) trade deal during the most recent election campaign? The TPP was seen by many as a break to the caretaker convention that essentially constricts a government during an election to conduct only necessary or routine business. Granted, it would not have been easy for Canada to cease participation at such a critical stage in the negotiations. But even according to the caretaker government guidelines provided by the Privy Council Office under the former Conservative government, there should have been, at minimum, consultation with opposition leaders during the election period, which did not occur.
And what of the indirect breach of the caretaker convention arising from the recent revelation of the Conservative government's 49 appointments far into a future after its time in office has expired?
Perhaps the most notorious breach of convention was one that involved the rule that a government can only stay in power with the confidence of the House. Yet, when faced with a certain defeat on a confidence vote, the government engineered a prorogation in 2008 that will be questioned for decades to come.
Not all rules can be written into law. Indeed, without the application of common sense and decency, progress would be frozen in time. This is true in the relations between people, but it is also true in the way government should work.
Further information on governance law can be found in the Public Policy Forum report, Time for a Reboot.