Tuesday, October 13, 2015

The Harper Government, the TPP and the Caretaker Convention

After the announcement of the success of the negotiation process of the Trans-Pacific Partnership, I started wondering how the Harper government was able to negotiate this extremely significant trade agreement during an election period when the House of Commons is dissolved and all MPs, including the Prime Minister, are considered to be "candidates".  Well, it seems that the Harper government had their butts covered on this one as you will see in this posting.

First, let's look at the concept of the Caretaker Convention.  The Caretaker Convention provides a detailed outline of what the federal government is allowed and not allowed to do under two situations; during a general election or during a transition when cabinet ministers are shuffled from one portfolio to another.  Under the terms of the Caretaker Convention, the existing Prime Minister and his or her Cabinet retains their full legal authority, a necessary objective since a national crisis or emergency could take place during an election period.  What cabinet ministers and the Prime Minister must do is restrict themselves in terms of policy, expenditures and appointments to activities that are routine, non-controversial, urgent, reversible by a new government without undue cost or disruption and agreed to by opposition parties in cases where consultation is appropriate.

Historically speaking, Canadian governments have been reluctant to release the details of the Caretaker Convention.  Fortunately, an Access to Information request made by fellow blogger James Bowden shed the light of day on this document back in 2011.  Here is a copy of the Caretaker Convention dated 2008 that was released by the Harper government of the day and here are a series of screen captures showing the first few pages of the 2008 document:

As you can see, it is generally quite clear what governments are allowed to do during election periods.

Now that we have that background, let's move to the current election.  In what appears to be unprecedented openness, the Harper government through the Privy Council Office, proactively released the Caretaker Convention document on August 2nd, 2015, the day that Stephen Harper announced the 2015 election and, coincidentally, the Canadian long weekend when the media and Canadians weren't paying attention.  Here is a screen capture of the first part of the document which includes exactly the same elements as the pages attached above:

Do you notice any difference between the two versions?  In case you missed it, at the end of the section under Continuing Government Business, you will find that the following paragraph has been added to the 2015 version of the Caretaker Convention document:

"For greater clarity, there may be compelling reasons for continued participation by Ministers and/or officials in specific activities such as treaty negotiations. For example, when negotiations are at a critical juncture with timelines beyond Canada’s control, the failure to participate in ongoing negotiations during the caretaker period could negatively impact Canada’s interests. Under such conditions, a compelling case may be made for ongoing efforts to protect Canada’s interests. Irreversible steps such as ratification should be avoided during this caretaker period."  (my bold)

The Harper Government basically changed the Caretaker Convention right at the beginning of the 2015 election, giving itself the right to negotiate Canada's participation in an international trade agreement that covers 40 percent of the world's GDP.  As well, if we look at the first section of the Caretaker Convention, it very clearly states that "consultation with the opposition parties may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse."  I wonder how often Mr. Harper consulted with Mr. Mulcair, Mr. Trudeau or Ms. May between August 4th and the day of the announcement of Canada's participation in the Trans-Pacific Partnership on October 5th?  I think that we all know the answer to that question, don't we?

What are the odds that the Canadian government, under any leader, will back out of the TPP at this point in time?  As well, committing to significant changes in Canada's economic policies during an election period (i.e. changes to patent laws, the farm quota system, access to and patent protection of pharmaceuticals etcetera) even though they have not been ratified, goes well beyond the routine activities of any government.

But, as we've seen in the past, the Harper government is quite willing to change the rules to benefit itself and there has been no exception in the case of the Trans-Pacific Partnership.