The Political Legitimacy of Cabinet Secrecy
Revue juridique Thémis de l'Université de Montréal, Vol. 51, No. 1, 2017
58 Pages Posted: 24 May 2018
Date Written: November 15, 2017
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.
Keywords: Constitutional Convention, Cabinet Secrecy, Cabinet Secret, Cabinet Document
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