This past weekend was a busy one politically as Canada was launched into a lengthy election campaign just as countries negotiating the latest round of Trans Pacific Partnership negotiations in Hawaii failed to conclude a deal. With reports that there may be a follow-up ministerial meeting within weeks, Canadian officials have been quick to claim that the election campaign will not interfere with the TPP trade talks.
To support the claim that the government is permitted to continue negotiating even when it is a “caretaker” government, the Privy Council Office yesterday released a document titled Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election. In previous elections, this document was not publicly released, leading Liberal MP Ted Hsu to table a motion in 2011 calling for its availability and to recent op-eds raising the same concern.
Why the sudden change of heart? Perhaps it has something to do with the desire to release this paragraph:
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.
That paragraph sounds suspiciously tailor-made for the government’s claim that it can continue to negotiate the TPP, reading more like an argument than a guideline. In fact, it is the only section in the document that purports to expand upon the guidelines by offering “greater clarity.” More notably, the paragraph was not included in earlier versions of the guideline. James Bowden obtained a copy of the 2008 guidelines under the Access to Information Act. Those guidelines, which were also issued under a Conservative government, are very similar to the 2015 version with the exception of the paragraph discussing on treaty negotiations.
Despite the government’s attempt to grant itself the power to continue to negotiate the TPP during an election campaign, there are reasons to doubt that it can effectively do so. First, while there would seemingly be no problem with ensuring Canada remains at the negotiating table, committing to significant policy changes would go well beyond the description of a caretaker government that should be largely limited to “routine” activities.
The guidelines note that “where a major decision is unavoidable during a campaign (e.g., due to an international obligation or an emergency), consultation with the opposition parties may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse.” The government seems unlikely to consult with the opposition parties and the end-game TPP negotiations are anything but routine. As has been widely reported, the agreement would require major changes to a wide range of issues including Canadian copyright law, patent law, and supply management protections. These changes would involve significant legislative reforms with enormous costs to health care, education, and agricultural sectors. Agreeing to those changes when acting as a caretaker government would appear to violate the requirement to restrict activities to routine or non-controversial matters.
Second, even if the government participates in the negotiations, the remaining TPP countries should have doubts about Canada’s ability to deliver on its commitments since a change in government in October is a possibility. A new government – or even a Conservative minority government – might have an impact on Canada’s position on the most contentious TPP issues that would force parties back to the bargaining table. The electoral uncertainty places Canada in much the same position as the U.S. before Congress approved Trade Promotion Authority. Without TPA, the TPP was subject to specific approval by Congress, which could have demanded changes to the text. The remaining TPP countries were unwilling to negotiate with the U.S. knowing that an agreement was not really final given the possibility that U.S. domestic politics could lead to changes.
The same is now true for Canada. Without a government mandate, Canadian negotiators simply can’t provide other TPP countries assurances that concessions made today will last beyond October 19th. The government may have quietly altered its rules to provide assurances that it can negotiate a deal, but it would be more appropriate to adopt observer status until the conclusion of the current election campaign.