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So, a quick (for me!) explainer of responsible government in a Westminster parliamentary system. Grab your pillows and/or coffee, as per your needs and preferences... https://twitter.com/millwoodsgal/status/1260556128376598529
Most of the Crown’s powers are exercised through legislation. Moreover, those Crown powers which do not require legislative authority in order to be exercised (Crown prerogatives) can still be limited or removed by legislation should Parliament choose to do so.
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Prerogatives are exercised by the Crown in Council (the Government), which in the American non-Westminster system is called the executive Branch (a few prerogatives, including honours, are exercised by the Crown directly and not the Government).
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In addition, Parliament has delegated certain authorities to the Government, allowing the Government to make certain decisions and run the day-to-day business of governing. In fact, most of what happens in terms of governing is done by the Government and not by Parliament.
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Most of these authorities are delegated by Parliament to ministers (appointed by the Prime Minister). In turn, the ministers are accountable to Parliament for how this authority is exercised. There are a number of ways this happens, which for brevity I will skip.
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The Government is supported by the public service. The principal duty of the public service is to provide advice and information to the Government and to carry out the Government’s lawful decisions.
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Ministers, after all, are not necessarily experts in the areas over which they have charge. Even those who have an extensive background will not have a thorough understanding of the field. Nor will they have the time to do all the research and analysis needed.
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In addition to providing that expertise and performing the research and analysis, public servants also can perform certain government functions. Most do this in the name of their minister. Rarely, some have direct authority.
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For example, the Minister of National Revenue is charged with assessing tax returns. That’s too much work for the Minister to do personally, especially if not trained in accounting or tax law. Certain officials at CRA do this instead.
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However, the Minister remains accountable for all the decisions made and is the one who answers, especially to Parliament, for those decisions. Even if the power is not exercised personally, the Minister presides over the department and is responsible for everything it does.
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More rarely, Parliament will delegate certain authorities directly to a public servant. This is generally done when there is a desire for decisions to be made without any political direction.
Typical examples are regulators.
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Typical examples are regulators.
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When an authority has been directly delegated by Parliament to an official, it is that official who has to exercise the authority (much like ministers, this can include the official’s staff, although this is frequently made explicit in the statute).
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It is *not* the authority of a minister or the Government. So, the Government cannot direct the official as to how that authority should be exercised. The official can consult with the Government, but ultimately must make the decision.
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Officials delegated with authority who just automatically do whatever the Government wants have unlawfully fettered their discretion or delegated their power to another. When this happens, a court will, on an application, quash the decision and direct the official to decide.
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