Why won’t the Liberals act on Harper’s overreach on appointments? Baar and Russell

Valid points by Carl Baar and Peter Russell (a former and excellent professor of mine):

One of the lingering excesses of the Stephen Harper government has remained largely unaddressed: awarding appointments for positions that would not be vacant until after the Oct. 19, 2015, federal election.

To the astonishment of many of our colleagues in political science and law, 49 order-in-council appointments were adopted by the Conservative cabinet from Nov. 27, 2014, to July 28, 2015 – all before the dissolution of Parliament – even though the effective dates of the orders were after Oct. 19, 2015, and in one case not until Jan. 1, 2019.

Of these, 48 were reappointments of existing members of agencies, boards and commissions, typically for fixed terms of two to five years, paying salaries as high as $200,000 a year or more.

The one new appointment was to the National Energy Board, for a seven-year term that began on Nov. 23, 2015 – a month after the election was over, and continues until Nov. 22, 2022.

We know of no constitutional principle that allows a government to fill vacancies that do not exist until after the end of its mandate – in this instance, when those vacancies occur after an election has been held.

The search for comparable events has been instructive if not troublesome. Last fall, elections in Poland led to the defeat of its previous government. The new government rescinded five appointments made by its predecessor to the country’s Constitutional Tribunal. That tribunal subsequently ordered three of those appointees reinstated, but declined to reinstate the other two because their positions were not vacant until after the new government came into power.

In Florida, the term of a member of its Supreme Court expired on Jan. 1, 1999, the same day governor-elect Jeb Bush was scheduled to take office to replace a Democratic incumbent. The situation was resolved when the two party leaders agreed on a single appointee to fill the vacancy.

Surely in Canada, with a system of government based on principles of responsible government and democratic accountability, this kind of overreach – making appointments that become effective beyond a government’s democratic mandate – is just as unacceptable as in other democracies.

….Our constitutional system is bulwarked by a set of “unwritten” principles or conventions to ensure that official conduct is consistent with the underlying spirit of our written Constitution.

One advantage of having unwritten conventions is that they can change and be adapted to new challenges to our constitutional order. However a disadvantage is that when unexpected abuses of power occur, there is no easily identified convention to apply.

Thus, for example, there is a caretaker convention that requires government to act with restraint between the time Parliament is dissolved and the newly elected parliament meets. Restraint means carrying on with the day-to-day governing of the country but without taking new policy initiatives or making important appointments.

The caretaker convention emerged in 1896 when Conservative prime minister Charles Tupper, after his defeat in the election but before the summoning of Parliament, presented the governor-general, Lord Aberdeen, with a long list of appointments. The governor-general refused to sign the more important appointments, including those to the Senate and the Supreme Court of Canada. When the House of Commons met after the election, the new prime minister, Wilfrid Laurier, supported the governor-general’s refusal and no member of Parliament supported Tupper.

What we need now, in 2016, is for a member of Parliament to challenge the Harper government’s overreach appointments, and get the same kind of support as Laurier received for challenging Tupper’s attempt to make unconstitutional appointments.

In that way, Canada will establish a constitutional convention that a government cannot make order-in-council appointments to positions that will not be open until after an election.

Source: Why won’t the Liberals act on Harper’s overreach on appointments? – The Globe and Mail

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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