The Political Legitimacy of Cabinet Secrecy
(2017) 51:1 Revue juridique Thémis de l’Université de Montréal, 51-107
In the Westminster system of responsible government, constitutional conventions have traditionally safeguarded the secrecy of Cabinet proceedings. In the modern era, where openness and transparency have become fundamental values, Cabinet secrecy is now looked upon with suspicion. The justification and scope of Cabinet secrecy remain contentious. The aim of this article is to address this problem by explaining why Cabinet secrecy is, within limits, essential to the proper functioning of our system of government. Based on the relevant literature and precedents, it is argued that Cabinet secrecy fosters the candour of ministerial discussions, protects the efficiency of the collective decision-making process, and enables Ministers to remain united in public, whatever disagreements they may have in private. In addition, Cabinet secrecy ensures that the Cabinet documents created by one Ministry do not fall into the hands of its political opponents when there is a change in power. To force Ministers to settle their policy in public, or prematurely publish their Cabinet documents, would not bolster government openness and transparency; it would rather undermine it, as ministerial discussions would likely move underground, and Cabinet documents would probably cease to exist. This would impair the national historical records. Yet, while Cabinet secrecy is an important rule, it is not absolute. Political actors accept that Cabinet secrets are not all equally sensitive and that their degree of sensitivity decreases with the passage of time until they become only of historical interest. They also recognize that the public interest may justify that an exception be made to the rule in some circumstances, for example, when serious allegations of unlawful conduct are made against public officials. It is submitted that, properly construed and applied, Cabinet secrecy is politically legitimate in Canada.
About the Author:
Yan Campagnolo’s research focuses on the political, legal and theoretical dimensions of Cabinet secrecy in Canada. From 2004 to 2005, Professor Campagnolo served as a law clerk to Justice Morris Fish of the Supreme Court of Canada. From 2006 to 2008, he joined the Civil Law Section of the University of Ottawa, where he worked as an assistant professor, assistant dean and codirector of graduate studies in law. From 2008 to 2015, he practised law as counsel for the Privy Council Office. In this capacity, he advised the Prime Minister and the Clerk of the Privy Council on Supreme Court of Canada high-impact constitutional litigation, commissions of inquiry, democratic reform and access to information. In 2015, he joined the Common Law Section of the University of Ottawa as an assistant professor and a member of the Public Law Group.