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Chapter 3 The Constitutional Sources of Bureaucratic Independence

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Chapter 3 The Constitutional Sources of Bureaucratic Independence ...

    Sossin, “Bureaucratic Independence” Draft – December 30, 2003

    Speaking Truth to Power?

    The Search for Bureaucratic Independence in Canada

    Lorne Sossin1

    Faculty of Law, University of Toronto

    Abstract

This article seeks to address the nature and scope of bureaucratic independence, examine

    its sources in Canada‟s constitutional order and explore its implications for public law and public administration. The executive branch of government is typically seen in

    unitary terms as the Crown. This article posits that the executive branch should be seen instead as a complex web of institutional and constitutional arrangements between the

    political and bureaucratic spheres. It is argued that the civil service is subject to a poorly

    understood but dense network of constitutional provisions, conventions and principles,

    and that our democratic institutions and practices would be meaningfully enhanced if

    these were more fully elaborated. Civil servants are the guardians of a public trust

    underlying the exercise of all public authority. Their ability to uphold the public interest

    and when called upon, to speak truth to power, depends on a measure of independence

    from undue political influence. Neutrality, integrity, professionalism and trust, on this

    view, are inextricably linked to the concept of independence. What this norm means for

    particular governmental settings will vary according to political and bureaucratic contexts.

This analysis is divided into five sections: 1) the first section explores the constitutional

    convention of political neutrality as an organizing principle of the civil service; 2) the

    second section examines implications of the common law duty of loyalty owed by civil

    servants to the government of the day; 3) the third section reviews the protections

    afforded civil servants from political interference, including the guarantees of freedom of

    political expression for civil servants under the Charter, whistle-blower protections at

    common law and by statute and protection against political discrimination in human

    rights codes; 4) the fourth section considers the scope of the constitutional principle of

    the rule of law and its relationship with bureaucratic independence; and (4) the fifth

    section analyzes of the content of bureaucratic independence and its relationship to the

    existing jurisprudence on the institutional independence of adjudicative tribunals in

    administrative law.

Table of Contents:

1 This is the first part of a book project which has been generously funded by the Social Science and

    Humanities Research Council, the Connaught Foundation and the Faculty of Law of the University of

    Toronto. I benefited greatly from the comments of colleagues at the Faculty of Law, University of Toronto,

    following a seminar presentation of this topic in November of 2003. I am especially grateful to the many

    civil servants, lawyers and political staffers who candidly shared their views and experiences on this topic.

    A number of research assistants have made significant contributions to this research, and in particular,

    Justin Bates, Angela D‟Elia, Emily Hill and Meagan Thomas.

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Sossin, “Bureaucratic Independence” Draft – December 30, 2003

    Introduction……. 2

    I. Political Neutrality, Constitutional Conventions and Civil Servants 7

    1) Scope of the Constitutional Convention …… 7

    of a Politically Neutral Civil Service

    2) Scope of the Civil Service…… 18

    3) Drawing Constitutional Boundaries…. 22

    II. The Duty of Loyalty and Fidelity to the Government of the Day 26

    III. “No Minister”: Whistle-Blowers and Expressive Freedom 32

    IV. The “Rule of Law” Administrative State 46

    V. Bureaucracy, Tribunals and the Meaning of Independence 53

    Conclusion 61

Introduction

     For government to be effective and to serve the public interest, politicians and

    bureaucrats often must work in tandem, hand in glove, especially in the development and

    implementation of public policy. At such times, the separation between the political and

    the bureaucratic functions is fluid and porous and the executive branch of government is

    characterized by the interdependence of these political and bureaucratic spheres. At other

    times, a virtually impenetrable wall insulates the bureaucratic from the political sphere, as

    in the context of prosecutorial discretion in the criminal justice context. The questions

    across these various governmental settings are: how independent should the civil service

    be from the government of the day and how can this independence be assured? This

    article seeks to address these questions about the nature and scope of bureaucratic

    independence, examine its sources in Canada‟s constitutional order and explore its implications for public law and public administration.

In his recent, thought-provoking study of Canadian bureaucracy, Donald Savoie takes

    as his point of departure that the relationship between bureaucrats and politicians is not

    subject to constitutional rules and therefore has developed around mutually acceptable

    practices, or in his words, a “bargain”.2 While it is true, as Savoie observes, that the

    2 D. Savoie, Breaking the Bargain: Public Servants, Ministers and Parliament (Toronto: University of Toronto Press, 2003), pp.4-16. Savoie elaborates, “Under the arrangement, public servants exchanged overt partisanship, some political rights and a public profile in return for permanent careers, or at least indefinite

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Sossin, “Bureaucratic Independence” Draft – December 30, 2003

    Canadian Constitution Acts of 1867 and 1982 contain virtually no references to the civil

    service, this overlooks a rich Constitutional tradition in Canada in locating many of our

    most important constitutional principles (judicial independence, the primacy of the rule of

    law, and so forth) largely outside the formal text of the Acts. In this paper, I argue that

    the civil service is subject to a dense network of constitutional provisions, conventions

    and principles, and that our democratic institutions and practices would be meaningfully

    enhanced if these rules, principles and conventions were more fully elaborated. Civil

    servants are the guardians of a public trust underlying the exercise of all public

    authority.3 Their ability to maintain the integrity of that trust, and when called upon, to

    speak truth to power, depends on a measure of independence from undue political influence. Neutrality, integrity, professionalism and trust, on this view, are inextricably

    linked to the norm of bureaucratic independence. The consequence of reaffirming the

    critical role played by the civil service in discharging the public trust is not to erode or

    undermine Parliamentary supremacy. Rather, it is to recognize that the separation of

    powers doctrine, as it has developed in Canada (and elsewhere), has failed to come to

    terms with the complexities of the executive branch. As Terence Daintith and Alan Page

    have observed:

While the trinity of executive, legislative and judicial functions may be the most

    powerful rationalization of the specialization process that has yet been offered, it

    cannot by itself capture the overall significance of any given structure of government

    for constitutional values such as democracy and accountability… We should therefore

    resist the easy assumption that the allocation of powers and functions within each of

tenure, anonymity, selection by merit, a regular work week, and the promise of being looked after at the

    end of a career … Politicians meanwhile exchanged the ability to appoint or dismiss public servants and

    change their working conditions at will for professional competence and non-partisan obedience to the

    government of the day.”(at pp.5-6

    3 Under this approach, public officials are “entrusted” with authority subject to the condition that it be exercised fairly, reasonably and justly. See P. Finn, “The Forgotten “Trust”: The People and the State” in

    Malcolm Copp, ed., Equity Issues and Trends, (The Federation Press, 1995), ch. 5. See also D.K. Hart,

    Social Equity, Justice and the Equitable Administrator” (1974) Public Administration Review 34 and L.

    Sossin, “Public Fiduciary Obligations, Political Trusts and the Evolving Duty of Reasonableness in

    Administrative Law” (2003) 66 Saskatchewan Law Review 129-82.

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Sossin, “Bureaucratic Independence” Draft – December 30, 2003

    the organizational blocs identified by the separation of powers are less significant to

    the protection of constitutional values than are the relations between those blocs.4

    In embarking on this inquiry into bureaucratic independence, the first question to

    address is: independence from whom? Public servants work for the Crown. In most cases,

    civil servants take instruction from the government of the day. Indeed, some would

    suggest that any distinction between the Crown and the government of the day is itself a

    legal fiction?5 To what extent and in what circumstances does their duty to the Crown to

    uphold the public interest permit or even require public servants to refuse instructions

    from the government of the day? What constitutional doctrines enable bureaucrats to

    remain protected from the undue interference of their ministers? What safeguards ensure

    civil servants cannot use their positions to partisan ends?

    The boundary between the partisan interests of ministers and the impartial duties

    of civil servants represents the defining, internal dynamic within the executive branch of

    government. When one speaks of the separation of powers in Canada, one tends to

    consider the relationship between the executive, legislative and judicial branches of

    government. From this vantage, the relationship between ministers and bureaucrats

    appears straightforward. The executive branch is headed by the Premier or Prime

    Minister and the Cabinet composed of the ministers, who in turn are in charge of the

    bureaucracy. Bureaucrats are accountable directly to ministers and ministers are

    accountable directly to the legislative branch, which in turn is accountable to the people.

    The concept of bureaucratic independence as a constitutional norm challenges this

    traditional, one-dimensional view of the executive branch of government. It implies that

    the executive branch of government must be seen in pluralistic terms, as a complex web

4 T. Daintith and A. Page, The Executive in the Constitution: Structure, Autonomy and Internal Control

    (Oxford: Oxford University Press, 1999), p.12. In discussing the dynamics within the executive branch in

    particular, the authors observe with puzzlement the lack of attention by constitutional scholars: “The

    executive governs us; it comprises the individuals mostly ministers and civil servants who actually control, from day to day, the state‟s instruments of coercion, wealth and information. The idea that it might not be constitutionally important would seem too bizarre to mention, were it not for the fact that the

    literature on constitutional law is remarkably reticent on the subject.” (at p.2)

5 See, for example, R. Watt, “The Crown and its Employees” in M. Sunkin and S. Payne (eds.), The Nature

    of the Crown (Oxford: Oxford University Press, 1999), p. 288. See also Town Investments Ltd. v. Department of the Environment [1977] 1 All E.R. 813 at 818 per Lord Diplock.

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    Sossin, “Bureaucratic Independence” Draft – December 30, 2003 of political arrangements, institutional relationships, constitutional obligations and legal

    duties. For the purposes of this analysis, the key dynamics include the roles of the

    “political executive” (Premier/PM and Cabinet, drawn from the political party which

    controls the legislature),6 and the roles of the “civil service.7 The political executive

    directs the “government of the day” while the civil service