There has been lots of government publicity recently about significant upcoming celebrations marking such anniversaries as the Charlottetown Conference (150 years ago); and, the beginning of World War I (a century ago this summer). Noticeably absent, however, has been a commemoration of one of the most significant milestones in Canadian constitutional development. Next month will mark the 175th anniversary of the Durham Report on governance in the Canadas (East and West). Lord Durham (known in his day as "Radical Jack") recommended that the colony adopt a form of responsible government under which the Executive Council (our modern day Cabinet) would be responsible to the Legislative Assembly. One historian has called the Durham Report the "Magna Carta" for parliamentary democracy in Britain's overseas colonies and it enshrined the concept of Ministerial responsibility and accountability in Canadian parliamentary tradition.
The concept is simple. Ministers of the Crown have a two-fold level of responsibility and accountability. Firstly, they are answerable to Parliament for all policies, procedures and actions taken under the auspices of the portfolio. Secondly, as previously articulated by the current government in Accountable Government: A Guide for Ministers and Secretaries of State (2006), ministers are responsible for "the actions of all officials under their management and direction, whether or not the ministers had prior knowledge." And, in fact, the Conservative Government has used this very responsibility in the past to justify not allowing staff members to testify in front of House of Commons committees. It was their argument that the Minister and the Minister alone was responsible for all actions taken by their staff. Behind this shield, the details of the work of political staffers became opaque and were protected from scrutiny.
A research study was commissioned by Parliament in 2007 on Clarifying the Doctrine of Ministerial responsibility as it applies to the Government and Parliament of Canada. Author David Smith outlined the history and parameters of ministerial responsibility and its meaning for good governance.
He notes that by statute: Ministerial responsibility is the hinge of the Constitution. Individually and collectively, ministers are the conduit between the people's representatives and the Crown in whose name government is conducted...
He goes on to quote Governing Responsibly: A Guide for Ministers and Ministers of State (2003) published by the Privy Council Office (PCO):
Individual ministerial responsibility is "personal" not "institutional". It is shared with no one. "Ministers must respect the non-partisan nature of the Public Service of Canada...Ministers are individually responsible to Parliament and the Prime Minister for their own actions and those of their department, including the actions of all officials under their management and direction, whether or not the Ministers had prior knowledge," and that "clear ministerial accountability to Parliament is fundamental to responsible government."
He goes on to state that: It is no coincidence that debate today over ministerial responsibility is taking place at a time when there is strong criticism of prime ministerial power and the rigid party discipline that makes it possible. Much is said about the failure of the House and its members to speak for or be responsive to public and constituency opinion...the lack of attention to accountability as an overriding goal of our political system has resulted in many citizens choosing to opt out of the political process.
So where are we on the 175th anniversary of the Durham report? It would appear that we have regressed back to the Family Compact days of the 1830s. Members of the House of Commons have little or no public control over the actions of Ministers and are often left defending the indefensible to their constituents at home. In 2011, the current government quietly changed the guidelines for Ministerial responsibility to say "Ministerial accountability to Parliament does not mean that a minister is presumed to have knowledge of every matter that occurs within his or her department or portfolio, nor that the minister is necessarily required to accept blame for every matter." It's kind of a "four legs good, two legs better" rewrite of the principle of responsible government.
This erosion of the principles of good governance should be of concern to everyone. We see evidence of it in the non-responses by Ministers in Question Period and the lack of accountability to Parliament for the machinations of participants in the Senate scandal. A determination of criminality by the RCMP should not be our benchmark for determining moral and ethical responsibility by "officials under the direction and management" of members of Cabinet.
On February 11, 1839, the Report on the Affairs of British North America, authored by John "Radical Jack" Lambton, 1st Earl of Durham was tabled in the British Parliament. Our deliberate drift away from the fundamentals of responsible government may explain why it is not high on the official "celebration" list this year, but it should be a time of reflection for all of us on the principles upon which this country was founded.
The concept is simple. Ministers of the Crown have a two-fold level of responsibility and accountability. Firstly, they are answerable to Parliament for all policies, procedures and actions taken under the auspices of the portfolio. Secondly, as previously articulated by the current government in Accountable Government: A Guide for Ministers and Secretaries of State (2006), ministers are responsible for "the actions of all officials under their management and direction, whether or not the ministers had prior knowledge." And, in fact, the Conservative Government has used this very responsibility in the past to justify not allowing staff members to testify in front of House of Commons committees. It was their argument that the Minister and the Minister alone was responsible for all actions taken by their staff. Behind this shield, the details of the work of political staffers became opaque and were protected from scrutiny.
A research study was commissioned by Parliament in 2007 on Clarifying the Doctrine of Ministerial responsibility as it applies to the Government and Parliament of Canada. Author David Smith outlined the history and parameters of ministerial responsibility and its meaning for good governance.
He notes that by statute: Ministerial responsibility is the hinge of the Constitution. Individually and collectively, ministers are the conduit between the people's representatives and the Crown in whose name government is conducted...
He goes on to quote Governing Responsibly: A Guide for Ministers and Ministers of State (2003) published by the Privy Council Office (PCO):
Individual ministerial responsibility is "personal" not "institutional". It is shared with no one. "Ministers must respect the non-partisan nature of the Public Service of Canada...Ministers are individually responsible to Parliament and the Prime Minister for their own actions and those of their department, including the actions of all officials under their management and direction, whether or not the Ministers had prior knowledge," and that "clear ministerial accountability to Parliament is fundamental to responsible government."
He goes on to state that: It is no coincidence that debate today over ministerial responsibility is taking place at a time when there is strong criticism of prime ministerial power and the rigid party discipline that makes it possible. Much is said about the failure of the House and its members to speak for or be responsive to public and constituency opinion...the lack of attention to accountability as an overriding goal of our political system has resulted in many citizens choosing to opt out of the political process.
So where are we on the 175th anniversary of the Durham report? It would appear that we have regressed back to the Family Compact days of the 1830s. Members of the House of Commons have little or no public control over the actions of Ministers and are often left defending the indefensible to their constituents at home. In 2011, the current government quietly changed the guidelines for Ministerial responsibility to say "Ministerial accountability to Parliament does not mean that a minister is presumed to have knowledge of every matter that occurs within his or her department or portfolio, nor that the minister is necessarily required to accept blame for every matter." It's kind of a "four legs good, two legs better" rewrite of the principle of responsible government.
This erosion of the principles of good governance should be of concern to everyone. We see evidence of it in the non-responses by Ministers in Question Period and the lack of accountability to Parliament for the machinations of participants in the Senate scandal. A determination of criminality by the RCMP should not be our benchmark for determining moral and ethical responsibility by "officials under the direction and management" of members of Cabinet.
On February 11, 1839, the Report on the Affairs of British North America, authored by John "Radical Jack" Lambton, 1st Earl of Durham was tabled in the British Parliament. Our deliberate drift away from the fundamentals of responsible government may explain why it is not high on the official "celebration" list this year, but it should be a time of reflection for all of us on the principles upon which this country was founded.
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