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A New Prime Minister Would Have 10 Days To Transfer Power

The Hill Times
By Paco Francoli

June 21, 2004

If federal Liberals lose, PCO Clerk Himelfarb won't have contact with Conservatives until a date agreed on for the transfer of power

Give or take 10 days.

That's how much time senior public servants will have before their new political bosses take office, once the nearly 11-year-old Liberal government loses power on June 28 as most polls indicate and most pundits now predict.

At least that's the theory.

But with a minority situation a very distinct possibility, some are predicting that the transfer of power to be overseen by PCO Clerk Alex Himelfarb could take longer to kick in.

Michael Teeter, a principal at the government relations firm Hillwatch.com, admitted that transitions normally take about 10 days to take hold, but that this election might produce a different result.

"If the votes were evenly split between the two major parties it could take quite a long time before [Governor General Adrienne Clarkson] can answer who has the confidence of the House of Commons," he said.

In particular, the political landscape has been complicated by the fact two smaller parties ­ the Bloc and the NDP ­ have the potential of holding the balance of power. It may therefore be difficult to judge which main party ­ the Tories or the Grits ­ are capable of governing after the election.

The Canadian Constitution is silent on the time-frame for the transition. As longtime Privy Council constitutional adviser James Hurley explained in an interview last week with The Hill Times, the process could drag on indefinitely.

"There is a period of transition that can be shorter or longer, depending upon the particular circumstances ­ it could be a week or ten days or several weeks. There is no timeframe defined in the Constitution," he said.

If the result is conclusive at the Liberals' expense, Prime Minister Paul Martin and his ministers would have to vacate their offices fairly quickly. Mr. Hurley, now retired and living in Ottawa, stressed that the Liberals will have about a 10-day window to clear up their offices in the PMO, PCO and all other federal agencies and departments. Anything beyond that and they'll risk the wrath of the public.

"Clearly, the transfer of power should not be held up unreasonably and the outgoing government would not wish to incur the opprobrium of the Canadian people by acting in bad faith," said Mr. Hurley who, as PCO constitutional adviser from 1975 to 2001, has seen his share of government transitions.

Mr. Hurley said the transition can be a useful exercise for both the departing and incoming governments.

"A period of transition is useful both to the outgoing government and the incoming one. The outgoing government needs some time to clean out offices, attend to administrative issues and transfer its records to the archives. The incoming Prime Minister needs time to assess the electoral results before putting the final touches to the new Cabinet."

PCO has already been busy preparing a new set of transition books and briefing books in case a new government takes power.

"Obviously PCO and the rest of the government has to be ready to support and serve any government that Canadians will elect on June 28," said François Jubinville, a PCO spokesperson. "So we'll be ready regardless of the political stripe of the new government."

The clerk of the Privy Council, Mr. Himelfarb, will head the transition process on behalf of the public service. If the Liberals lose power, he won't have contact with the Conservatives until a date is agreed for the transfer of power.

"The outgoing Prime Minister and the leader of the incoming government would sit down and agree on a date for the transition and swearing-in of the new government. From that point on, the Privy Council Office and the rest of government would kick in," confirmed Mr. Jubinville.

In the meantime, senior public servants will be busy clearing the decks after nearly 11 years of Liberal rule. According to well-established practice, the incoming government won't be allowed to see any of the secretive records left behind.

One of Mr. Himelfarb's big responsibilities will be to make sure that the reams of Cabinet documents and plans produced by the Liberals make their way to the Library and Archives of Canada.

Mr. Himelfarb and his staff will act as the "custodian" of these records, said Mr. Hurley, who said the process is based on a convention started in 1957 when former Liberal prime minister Louis St. Laurent lost power to then Progressive Conservative leader John Diefenbaker. Mr. Hurley explained that the convention grew out of necessity when the scope and size of government required political parties in power to produce a record of their decisions and work in a far more formal manner than previous governments.

Mr. Hurley recalled how "Cabinet records were very limited prior to the Second World War." He said the situation changed when then prime minister William Lyon Mackenzie King established some Cabinet committees "to help with the heavy business of government in wartime."

Mr. Hurley noted that "no matters of confidence arose" over Cabinet documents when Mr. King transferred power in 1948 to new prime minister Louis Saint-Laurent because both men were from the same power. It only became an issue when PC leader John Diefenbaker became prime minister in 1957.

"Mr. Saint-Laurent and Mr. Diefenbaker agreed that the former government's records would be transferred to the archives," said Mr. Hurley, "that the Clerk of the Privy Council would be the custodian of those records and that public servants under the authority of the Clerk could have access to them but that the new government could not. This agreement or convention on how to handle the previous government's records remains in force."

The Hill Times

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