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Monday, November 23, 2015

Our commander in chief Justin issues his orders

Justin Trudeau’s ‘mandate letters’ to the newly sworn in cabinet ministers have been generally well received. In the letters he tells the ministers to be good and to get to work on fulfilling the Liberals’ campaign pledges.

I confess I do not recall hearing of mandate letters before Trudeau’s were released on November 13. Apparently they have been used before in Ottawa and several provinces. It was news that they were being published, as Kathleen Wynne had published her mandate letters to Ontario ministers on September 24, 2014 and Jim Prentice published his to Alberta ministers shortly before. Publishing the letters seems now to be the practice. What unpublished mandate letters were in earlier years sent to ministers in Ottawa and the provincial capitals and what they said is unclear.

They have, in part, the look of a management school exercise. Mission statements and business plans and other forms of putting good intentions on paper are big in management schools. If you can put together the paper that would get you straight As in management school, you may be thought to have done well whatever actually happens in the organisation you are supposed to be running.

Trudeau’s letters are also political propaganda, something that might not get an A in a management school:

“We have promised Canadians a government that will bring real change – in both what we do and how we do it. Canadians sent a clear message in this election, and our platform offered a new, ambitious plan for a strong and growing middle class.”

But what is most striking, and should be disturbing, about the mandate letters is the presumption of Justin Trudeau issuing orders to cabinet ministers. The letters have been described in the press as his ‘marching orders.’ Their tone is grossly condescending: ‘I will expect you….’

The Prime Minister has no legal or constitutional authority to issue orders to cabinet ministers. The old idea was that a prime minister was simply a primus inter pares, a first among equals. Departmental ministers have legal authority to make regulations and take other actions, but the Prime Minister has very little legal authority himself. All he can do is advise the Governor General to do things, which, so long as he, and the ministers who serve with him, have the confidence of the House of Commons, the Governor General will do.

But the principle of cabinet government is collective responsibility. Ministers are not supposed to do things because the Prime Minister tells them to but because they have confidence in each other and see things the same way and have had a chance to talk things over in cabinet and come to a consensus. If the Prime Minister tells a minister she should do something she doesn’t think best, she may decide not to make an issue of it, if she can see how to make a case for it, or she should resign. She can’t say, either now, or in her memoirs, ‘I thought it was a bad idea, but the Prime Minister ordered me to do it.’

Of course ministers on taking office will require extensive briefing on what their responsibilities and powers are and what issues they may have to address and what procedures they should follow. The civil service will have seen to that. But ministers do not require orders from the Prime Minister to get on with their work. If Trudeau had any doubts whether any of them were up to the job, he should not have advised the Governor General to appoint them.

All this may seem rather pedantic and abstruse. But it is actually central to the much canvassed issue of the overweening power of party leaders and the Prime Minister in our politics. In assuming a presidential prerogative to issue orders to what he must consider ‘his’ ministers, Trudeau assumes supreme authority. For all his talk of ‘real change,’ less than ten days after he was sworn in he was acting on the theory that Canada is an elective dictatorship.

The publication of Trudeau’s mandate letters has been hailed as an exercise in ‘open government.’ If we are to take it that Ministers of the Crown have been outed as the Prime Minister’s minions, perhaps that it is a good thing. But if, as seems to be happening, it celebrates the Prime Minister’s supreme authority, it is not.

Whatever letters Stephen Harper wrote to cabinet ministers, they were not subject to the indignity of having their subordination publicised.

Who, we might ask, has sent Justin Trudeau a mandate letter telling him how he should conduct himself?

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