FELDSTED – The active Privy Council is currently comprised of the Prime Minister and Cabinet Ministers. They cannot advise the government without engaging in an unethical conflict of interest

This is the second in a series ... on the Executive Branch of the Canadian government. Part 1 was an outline of the structure of the Executive Branch.

 

Today we will start to examine the structure more closely. The key element is in section 11 of the constitution:

11 There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.
    
It is the Queen’s (Governor General’s) Privy Council, not the Prime Minister’s Privy Council. The Governor General, not the Prime Minister decides who will sit on the Privy Council. There are several reasons for that. For the Privy Council to “aid and advise in the government of Canada” it must include members of Opposition Parties and may include such unelected experts as the Governor General deems appropriate.

At present, the active Privy Council is comprised of the Prime Minister and Cabinet Ministers. They cannot advise the government without engaging in an unethical conflict of interest. The Privy Council must be politically neutral.

The Commons is divided along party lines and the Senate is worse; divided between Liberal and Conservatives. Other parties are blocked out and have been since confederation. That needs to be corrected. Members of Parliament whose parties are recognized in the Commons should be eligible for the Privy Council.

The Privy Council must review legislation and programs in a detached manner, looking only at the benefit or disadvantage for Canadians.

The need for the Privy Council to be politically neutral is essential ... as the Clerk of the Privy Council is also head of the Civil Service. It is imperative that our civil service is politically neutral and serves the elected government of the day, not the opposition party that lost the election.

Civil servants should be required to sign an oath of political neutrality as a condition of their employment. What they do when they are not at work is different. Like members of the military, they can support elected representatives and political parties on their dime and time. They have the right to do so under our Charter of Rights and Freedoms.

Currently, the political party in power can find civil service positions for failed candidates and party supporters thereby politicizing the civil service.

The Privy Council membership needs a thorough housecleaning.

Currently, an appointment is for life which is contrary to the provision that allows the Governor General to remove members from time to time. The current 369 members is an unwieldy and unneeded group. We should never have more Privy Councillors than Senators (105).

The Privy Council working group should consist of not more than eight or twelve members of government, an equal number of opposition members and independent experts all chosen by the Governor General. That is for the Governor General to decide.

The directive to move the Privy Council from the Governor General’s domain to control by the Prime Minister’s Office was made by Order in Council in March 1940 (PC 1940 – 1121). An Order in Council requires Royal Assent to become effective and that was not possible as the Governor General at the time had died in February 1940. The hijack of powers was motivated in part by the King-Byng affair (1926) and King’s resentment at the ‘interference’ by Governor General Byng.

While there was some justification for strengthening the Prime Minister’s Office during wartime -- when there was a need to provide support to allied efforts to stem the tide of a takeover of free nations -- that did not persist when the war ended. There is no justification for current practices.

Our government departments and agencies and the government cabinet have grown immensely since 1940 as have capacities to respond in an emergency that was not available 80 years ago.   

The Order is Council is in violation of our constitution and is invalid. The Order in Council should have been rescinded at the end of World War Two, but was not. That error must be corrected and the power balance between the Executive and Prime Minister restored.

Constitutionally, the Governor General is not and should not be a figurehead. There are very rare occasions when executive powers come into play, usually in the event of internal or external crises. We need the executive branch to protect the people of Canada from unchecked government overreach and abuse.  

 

John Feldsted ... is a political commentator, consultant, and strategist. He makes his home in Winnipeg, Manitoba