Michael Geist About Full CV Photos Contact Writing Blog Books Chapters Scholarship Reports Newsletters Columns Columns Archive Teaching Regulation of Internet Commerce Technology Law Internship Global Technology Law Speaking Video Podcasts/Audio News Interviews Conferences Government Committee Testimony Keynote Speaking Tech Law Topics ACTA CETA Copyright Internet Governance Jurisdiction Lawful Access Net Neutrality Privacy Spam Surveillance Telecom TPP Connect Join my Facebook page Follow @mgeist Join me on Google+ Subscribe to my RSS feed Email me Connect on LinkedIn Pinned Posts in Pinterest 07290067 by SumOfUs (CC BY 2.0) https://flic.kr/p/wGpjox News Canadian Government Amends “Caretaker Rules” To Give Itself Power to Continue Negotiating TPP August 4, 2015 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. Share this: More Related posts: Premature Capitulation: How Canada Caved at the TPP Talks in Hawaii The TPP End Game and the Canadian Election More Than Milk: Why Agricultural Protections Are Just the Tip of the TPP Iceberg TPP Negotiations Conclude: What Next for the Trade Deal Without a Public Text? Tags: caretaker government / copyright / election / Patent / tpp 31 Comments Brian says: August 4, 2015 at 10:31 am Your arguments are all fine and good Michael, but do you really think Harper will abide by those rules and/or guidelines any more than he has the many others he’s just railroaded over without any oversight or consultation? Harper doesn’t play by the rules. Clearly in this case he wants his cake and he wants to eat it too. He wants the longest campaign period in modern history to bleed his opponents dry but at the same time he wants to pretend he is still the government and not a “caretaker”. He needs to choose one or the other. Oh. No. Wait. He doesn’t. He is King (dictator) Stephen Harper. Mike Jones says: August 4, 2015 at 1:01 pm Oh shut up you lefty spam bots. Are the CBC forums shut down? Millions of Canadians suffer from Harper Derangement Frenzy and are about to vote in a communist government who will flush Canada down the toilet in just hours. James Jones says: August 4, 2015 at 1:21 pm Oh shut up you fear-mongering ignorant conservative. If NDP does what leftist governments have done in Sweden and other Scandinavian countries then I am all for a leftist government to replace stupid GOP enthusiasts in Canada. Michel Boucher says: August 4, 2015 at 2:53 pm Can’t we all just get along????? Aw screw it, I’m with you James Jones. Ruth McVeigh says: August 5, 2015 at 11:35 am I’m with you Michel. And I’m shocked (although I thought I was long past that) by Harper’s attempt to win approval to keep right on negotiating the TPP while fighting an election. Especially one he stands a good chance of losing even though he has the money to BUY it. Michael Fortin says: September 27, 2015 at 1:28 pm Very much in agreement with James; I’m not interested in a for-profit-screw-everything-else-only-money-matters mentality as they have in the USA. This is Canada; we stand for being peaceful, taking care of our citizens, and being intelligently thoughtful…not making money at all costs, even if it means trampling the little guy. Ronaldo says: August 4, 2015 at 1:23 pm News flash: we’re being flushed after nine years of garbage decisions by the current government. Every major law the PM has headed has been overturned by the courts or will be, at huge losses of money to public coffers. He can’t even keep the Royal Canadian Navy or veterans going properly, gutting them. All so he can get re-elected. Open your eyes, and see what he is actually doing, other than buying votes with taxable credits! Stella Britton says: October 1, 2015 at 1:57 am Too late for the “communists” to flush Canada down the toilet………Harper’s already done it. Brian says: October 1, 2015 at 8:22 am And that is all Harper’s fault. So while you are pointing your finger around, you might as well point it right back at you and your corportist friends you Harper-fanboys. Mitchell Leitman says: August 4, 2015 at 12:48 pm Brian, of course Harper can be expected to follow the rules. Even his judge appointees (at least to date) force him to abide them. The problem is that he is so adept at changing the rules. Mike Hunt says: September 23, 2015 at 7:15 am You the same Mitchell Leitman who negotiated the will for the demented veteran in 2009? Some rules! http://www.thestar.com/news/canada/2014/08/25/ndp_tightlipped_about_16_gift_from_will.html sg says: October 2, 2015 at 11:56 am Ha! Nice eye there Mike DRG says: August 4, 2015 at 3:23 pm Curiously, this paragraph does not appear in a 2008 version of the document I have that somebody posted online after an Access to Information request. Even the 2008 document, however, says that “In certain cases 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.” Mr. Mulcair already has indicated he is on board with the talks continuing. I can’t imagine the Liberals would be off side. J Story says: August 4, 2015 at 4:26 pm I agree, and I also agree with Geist that the really really tough obstacles will not be ironed out *unless* Harper has both contenders sign off on them. I think, however, that either Mulcair or Trudeau will *not* assent, because if the election returns a minority government, there is a lot of ammunition in the TPP for the opposition to use. Rod Croskery says: August 4, 2015 at 3:29 pm Unless I’m greatly mistaken, it seems that Harper has gone into the law book and changed things to suit himself without the approval of Parliament. He should be held accountable before the electorate and the courts for this dictatorial action. If he wants in on the TPP, he can work out an agreement with the other parties in the House of Commons. Similarly, if he wants to abolish the Senate, he can deal with the Premiers. Any other courses of action are illegitimate, and have no force of law. Jayme says: August 6, 2015 at 3:52 pm But this is not limited to Harper look at Wynn and the Liberals they do the same thing as with the Liberals in Quebec as for going to the courts that would likely raise concern by the Un and very well could delay a election by months. Pingback: TPP Negotiators Leave Hawaii While the Conclusion of the Deal Still Looms | thewire Pingback: TPP Negotiators Leave Hawaii While the Conclusion of the Deal Still Looms | Michigan Standard Ron B says: August 5, 2015 at 8:10 am Doesn’t anyone in parliament care about what these trade are doing to “Canada”? Are they paying attention to the lawsuits that are and have been ongoing over the original NAFTA agreement? Seems like they are trying their best to give away whatever is left of this once great nation. Dave Turchynsky says: August 5, 2015 at 12:26 pm This is what a coup d’etat looks like. Pingback: How to get your say on the Trans-Pacific Partnership: Don Pittis - News Canada Pingback: Federal election 2015: Choosing the best negotiator for the Trans-Pacific Partnership - News Canada Pingback: This election cycle, trade 'is being reduced to caricature': Don Pittis | Infos.Link James Metcalfe says: August 12, 2015 at 1:07 am Actually It is rapidly approaching the point where political parties, MPs, MPPs et all will soon (other than for appearances sake ) be redundant. Once dear uncle Harpo finishes signing and locking us into the European and Chinese “free trade” deals, not to mention the truly big bad nasty the TPP then ANY laws or legislation passed on a Federal, Provencal or municipal level that could effect any corporation now or in the future will have to have corporate approval to avoid multimillion possibly even billion dollar payouts. So taking that as a well spelled out given (in ALL three “deals”) then all we will really need is a Mayor, a Premier and a Prime Minister to act as a mouth piece and a figure head to pass on the Approved new laws and regulations from the appropriate private corporate arbitration tribunal. Now think of the savings!!!! no need for expensive Mps, Mpps, city counselors, Senate or even the house of commons. After all once you have sold out your sovereignty the process for making and enforcing laws is no longer your concern or expense. OHHH JOY just think of the money we will save !!!!! after all THAT’S what really matters right?…..Right ? Scott says: September 30, 2015 at 6:05 pm That’s the best comment I read today… And at the same time I almost puked while reading it and realizing it’s so true… We’re screwed… Pingback: Conservatives Agree to Censor Internet In Latest Trade Negotiations | Mind Bending Politics Pingback: Pacific Trade Deal's Outlook Clouded by Patent Disputes | SciTech Connect Pingback: Pacific Trade Deal’s Outlook Clouded by Patent Disputes | Science Technologies Pingback: Puget Sound Radio | The TPP End Game and the Canadian Election - Michael Geist - Puget Sound Radio Pingback: Harper’s keeping the Liberals, NDs in the dark on TPP — and it’s all about politics Pingback: TRUDEAU’S FIRST CHAPTER: TWO LIBERALS WEIGH IN | The Public Policy & Governance Review Recent Posts The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules January 29, 2016 The Trouble with the TPP, Day 19: No Canadian Side Agreements to Advance Tech Sector January 28, 2016 Why Canadian Telecom Companies Must Defend Your Right to Privacy January 28, 2016 Why Telecoms Must Defend Your Right to Privacy January 28, 2016 The Trouble with the TPP, Day 18: Failure to Protect Canadian Cultural Policy January 27, 2016 Recent Columns Why Canadian Telecom Companies Must Defend Your Right to Privacy January 28, 2016 The Battle Over the Future of Broadband in Canada: Mayors Tory & Watson v. Nenshi January 12, 2016 Tech Law in 2016: Previewing Some of the Tough Policy Choices January 5, 2016 The Letters of the Law: 2015 in Technology Law and Policy December 30, 2015 The Battle Over Uber: Mapping Out a Regulatory Compromise December 15, 2015 Recent Talks × × × The Trouble With the TPP Day 1: U.S. Blocks Balancing Objectives Day 2: Locking in Digital Locks Day 3: Copyright Term Extension Day 4: Copyright Notice and Takedown Rules Day 5: Rights Holders "Shall" vs. Users "May" Day 6: Price of Entry Day 7: Patent Term Extensions Day 8: Locking In Biologics Protection Day 9: Limits on Medical Devices & Pharma Data Collection Day 10: Criminalization of Trade Secret Law Day 11: Weak Privacy Standards Day 12: Restrictions on Data Localization Requirements Day 13: Ban on Data Transfer Restrictions Day 14: No U.S. Assurances to Canada on Privacy Day 15: Weak Anti-Spam Law Standards Day 16: Intervening in Internet Governance Day 17: Weak E-commerce Rules Day 18: Failure to Protect Canadian Cultural Policy Day 19: No Canadian Side Agreements to Advance Tech Sector Open Books Law, Privacy and Surveillance in Canada in the Post-Snowden Era (University of Ottawa Press, 2015) The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013) From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Irwin Law, 2010) In the Public Interest: The Future of Canadian Copyright Law (Irwin Law, 2005) Get Postings via Email Like me on Facebook Archives August 2015 S M T W T F S « Jul Sep » 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Michael Geist email@example.com This web site is licensed under a Creative Commons License, although certain works referenced herein may be separately licensed. 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