The ‘caretaker convention’

Opinion

Hey there, time traveller!
This article was published 17/06/2023 (840 days ago), so information in it may no longer be current.

Just to be clear from the outset, a “caretaker convention” is not a gathering of building custodians.

Rather, the phrase refers to a constitutional convention in cabinet-parliamentary systems. The caretaker convention presumes that governing parties will refrain from making major decisions during the campaign period when the legislature is dissolved and the government cannot be held accountable in that forum.

I was brought to this topic by Premier Heather Stefanson’s announcement that Manitobans will not head to the polls before Oct. 3, the scheduled date under the fixed date election law (FDEL). This news got me thinking about fixed date elections, the legal restrictions on government advertising prior and during election periods, and the so-called caretaker convention.

All three of these provisions are intended to somewhat level the playing field in election contests by limiting the opportunities for the governing party to use its authority in office to gain an unfair advantage.

In June 2019, after months of speculating about an early election, then-Premier Brian Pallister announced that a general election would be held on Sept. 10, 13 months prior to the scheduled date in October, 2020. Under the Elections Act, an unscheduled election must last between 28 and 35 days.

This legal requirement meant that Pallister only requested the Lieutenant Governor (LG) to issue the writ officially calling the election on Aug. 12. This meant there was in effect an unofficial campaign of nearly 90 days, not the 29-day campaign required by the FDEL It must be noted that, due to the clause in the FDEL preserving the authority of the LG, calling a snap election was perfectly legal.

In response to the early, de facto election campaign, the NDP demanded that the premier respect the caretaker convention. That convention requires that governments should not adopt during the campaign period any major policy decisions which are not easily reversed should a different party form government. If a decision is bound to be highly controversial, consultation with the opposition is advisable. Nor should the government sign long-term contracts with outside contractors or fill vacancies on boards/ commissions by appointing “political friends.”

The caretaker period is usually assumed to begin when the official election period begins. It is also assumed to apply during the usual two-week period of transition when there is a turnover in government and a different party is preparing to take over.

The caretaker convention is not legally binding. While its existence might be recognized by the courts, the penalty, if any, can only occur through the political process.

Accordingly, back in June 2019, when the NDP protested the expedited closure of the ER at Seven Oaks hospital (part of a consolidation process already underway) and the further moves to privatize the air ambulance service as violations of the convention, they could not take the government to court but hoped to make the PC party pay a political price for their actions.

To limit the political backlash, the Pallister government voluntarily bound itself to the then 90-day pre-election prohibition on all, but necessary government advertising, as required by the Election Financing Act (EFA). However, the advertising ban was then inappropriately applied to the release of information (eg hospital wait times) which the public needed and had a right to know. Despite dubious statements and actions by the premier, the PCs won another majority government.

Based on a report from an outside expert, in 2021 the Pallister government moved to clarify and amend the rules respecting government advertising. The period when restrictions apply was shortened to 60 days. Another amendment to the EFA allowed for advertising during the pre-election period if it pertains to a matter before the legislature, such as a budget or a bill.

Heading to the fall election, these changes will be of some marginal benefit to the PCs. Restrictions on advertising will not apply until Aug. 4, instead of July 4 if the former 90-day restriction period applied.

Also, guidelines (just released by the clerk to the executive council) indicate that ongoing advertising need not be withdrawn. This would mean that publicity for the pre-election budget, with its outpouring of tax cuts and new spending intended to impress voters, could continue. In Alberta, all existing advertising had to be withdrawn when the writ was dropped for the recently completed election.

It is unclear whether the new exemption related to matters before the Legislature will allow advertising about bills held over from the spring session.

The three constraints discussed above are important to fair elections but unknown to most voters. In short, they matter but they will not determine the outcome of the October election.

Paul G. Thomas is professor emeritus of political studies at the university of Manitoba.