PACP Committee Report

THE DOCTRINE OF MINISTERIAL RESPONSIBILITY

Ministers

When he appeared before the Committee, the Clerk of the Privy Council, Mr. Alex Himelfarb, outlined the central elements of the doctrine of ministerial responsibility as set out in Privy Council Office guidance publications ^[3]. According to this doctrine, ministers are broadly accountable to the Prime Minister and the House of Commons, on behalf of the people, for their exercise of the responsibilities assigned to them when they are appointed, including the powers and duties provided by Parliament through legislation. This doctrine is thus central to democratic accountability.

Within the broad area of ministerial responsibility, there is an area of personal responsibility defined by the decisions and actions of the individual minister (including decisions not to act). The confidence of the Prime Minister and the House in a minister rests essentially on the minister’s discharge of these personal responsibilities, defined as follows in the publication Governing Responsibly:

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. In practice, when errors or wrongdoings are committed by officials under their direction, Ministers are responsible for promptly taking the necessary remedial steps and for providing assurances to Parliament that appropriate corrective action has been taken to prevent reoccurrence.

Outside the area of personal responsibility and accountability, there is an area that is often called “answerability,” in which a minister is responsible for providing information and explanations to the Prime Minister and Parliament concerning matters within their assigned responsibilities for which they are not personally responsible (i.e., that do not reflect their decisions or actions). Examples include arm’s length agencies, boards and commissions, all of which are often part of a minister’s portfolio of responsibilities, but are structured so as to place authority for policy direction and general management directly in the hands of boards of directors or other bodies, rather than the minister.

Deputy Ministers

The doctrine of ministerial responsibility has implications for the responsibilities of deputy ministers and other public servants. Traditionally, they have been anonymous permanent officials serving the minister of the day by providing advice and implementing ministerial direction flowing from the broad ministerial authority to manage and direct departments. As the scope and scale of government has expanded, deputy ministers have come to exercise more and more of the authority formally conferred upon ministers, either by delegation or as a result of legislation that sets out specific responsibilities and authorities.

By law, deputy ministers act under the authority and direction of ministers, but the extent of the delegation of management authority in practice is reflected in the Interpretation Act, subsection 24(2), which provides (subject to certain exceptions) that deputy heads may carry out administrative, legislative or judicial acts that a minister has been directed or empowered to carry out. With respect to financial management, the Financial Administration Act places extensive responsibilities for public funds and property within the hands of Deputy Ministers. (see below)

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Implications

In his first appearance before the Committee, Dr. Franks identified four implications of the doctrine of ministerial responsibility, as set out above, that provide a useful basis for understanding the accounts of their roles that were provided by current and former ministers and deputy ministers appearing before this committee during its hearings on the Sponsorship Program.

The first implication is that only the current minister exercises the responsibilities attached to a ministerial position, and is accountable for their exercise to Parliament. Previous ministers are no longer responsible, in the special sense involved in the doctrine of ministerial responsibility, and cannot be held accountable or answerable by Parliament although they may appear before a committee as private individuals. Current ministers are not accountable to Parliament either, for decisions and actions taken by previous ministers, although they remain answerable (i.e., responsible for providing information and explanations). Once a minister has departed from a portfolio, no one can be held accountable by Parliament for what was done during that minister’s tenure.

In our parliamentary system, it is not possible to hold individual ministers to account. Unable to hold to account the individual who held the post of minister when bad decisions were made and inappropriate actions were taken, Parliament’s only available accountability mechanism consists of withdrawal of support — confidence — from the government of which the departed minister was a part. This is a power whose exercise could only have meaning in the context of a minority government in which case it would only be selectively used, leaving those directly and indirectly responsible for minor, yet important, transgressions unaccountable. And in instances of majority government — given the strong party discipline that exists in Canada — attempts to vote lack of confidence would have no effect.

The second implication is that ministers are answerable, but not fully accountable to Parliament for what is done by non-departmental agencies and other arm’s length bodies with the powers assigned to them by statute. The heads of these agencies are responsible for the exercise of these powers, and are responsible to Parliament through the minister rather than being responsible directly to the minister.

The third implication relates to the accountability of deputy ministers. According to the doctrine, deputy ministers are generally accountable to their ministers and to the Prime Minister (who appoints them). They also have a series of specific accountabilities, including accountability to the Treasury Board relating to responsibilities conferred by (among others) the Financial Administration Act and the Official Languages Act, and to the Public Service Commission for delegated human resource authorities. They are answerable (i.e., responsible for providing information and explanations) to Parliament and its committees, but ministers remain politically accountable for the management and direction of departments including the exercise of statutory powers assigned to deputy ministers. This contrasts with the responsibility of ministers for non-departmental organizations, which is limited in parallel with the limitation of their authority over them.

The fourth implication relates to ministerial responsibility for the errors or wrongdoings of officials. Ministers are responsible for taking appropriate remedial steps in a timely way, and for providing Parliament with the information that assures it that these steps have been taken. Ministers are accountable for the actions of officials if these actions are broadly reflective of ministerial direction, and they are accountable for actions taken or not taken in relation to prevent errors or wrongdoing that could reasonably have been anticipated, but they are not directly accountable for the errors or wrongdoing of officials themselves.

Dr. Franks summarized the combined effect of the aspects of the doctrine of ministerial responsibility he had drawn to the Committee’s attention as follows:

The Privy Council Office interpretation means that no minister, whether present or previous office holder, is accountable to Parliament for problems stemming from the tenure of a previous minister. Responsibility and accountability belong to the office and its current holder. Nor are ministers accountable rather than answerable when public servants misbehave. More important, in the sponsorship affair, deputy ministers are accountable only within the government to minister, prime minister and Treasury Board, but not to Parliament for the crucial management functions assigned to them alone by statute. (43:1115) [*]