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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, like the Crown itself, enjoys

    continuity through transitions of government. Under this approach, the political executive

    and civil service may be seen at once as interdependent and independent entities within

    government.8

    If it is to remain coherent, bureaucratic independence must be a concept elastic

    enough to encompass highly adjudicative administrative tribunals and highly independent

    officials such as Crown prosecutors on the one hand, and a range of policy analysts, line

    departmental staff members and bureaucrats on the other hand. It must be capable of

    adapting to what is sometimes referred to as the “post-bureaucratic era” of change-

    oriented, citizen-centred forms of public service-delivery and restructuring within the

    public service which may include public-private partnerships, outsourcing tasks and a

    variety of “new public management” initiatives.9 Unlike constitutional principles such as judicial independence or parliamentary supremacy which operate on the basis of bright

6 It is worth noting that in at least two territories, Nunavut and the Northwest Territories, there are no

    political parties in the legislature. A separate aspect of this research, to be published in a subsequent paper,

    will consider the significance of the relationship between the political executive and the civil service in

    settings without partisanship between political parties. In short, I found that while other political

    considerations tends to replace party affiliation in such settings, such as political groupings along regional

    and ethnic lines, so that the potential for political pressures on the civil service is not substantially reduced

    in such settings.

7 Terminology is problematic in this field. Most people use “bureaucratic”, “public servant” and “civil

    servant” interchangeably. Each could be given and has been given quite distinct meaning – as discussed

    further below. For ease of reference, I use the term “civil servant” in my analysis. This is intended to refer

    to those Crown officials who require a measure of independence in order to discharge their duty to the

    Crown.

8 There are other dynamics within the executive branch of government which are not addressed at length in

    this study but which reflect the diversity and complexity of Canada‟s constitutional system – these include

    most notably the range of executive boards, tribunals and agencies with fixed term appointments.

9 For discussion, see K. Kernaghan, “The Future Role of a Professional Non Partisan Public Service in

    Ontario”(2003) Panel on the Role of Government, Research Paper Series No. 13, p. 31-33.

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

    lines, bureaucratic independence must operate on the basis of a spectrum of duties and

    obligations applicable across diverse governmental settings.

    My aim in this study is to articulate bureaucratic independence as sufficiently practicable to be capable of application across diverse administrative settings, yet

    sufficiently principled to provide clear standards as to appropriate and inappropriate

    influence and conduct between the political executive and the civil service. The success

    or failure of this argument rests on its ability to resolve the fundamental tensions which

    underlie the constitutional status of the civil service tensions which emerge from

    reconciling the constitutional convention of political neutrality on the part of the civil

    service with the right of free expression to which individual civil servants are entitled,

    and between the duty of loyalty owed by civil servants to the government of the day and

    the duty owed by civil servants to the Crown to ensure government acts in accordance

    with the rule of law and not contrary to the public interest.

    This analysis is divided into five sections: 1) first, I explore the constitutional convention of political neutrality as an organizing principle of the civil service; 2) second,

    I examine the implications of the common law duty of loyalty owed by civil servants to

    the government of the day; 3) third, I review the protections afforded civil servants

    relating tofreedom from political interference, including the guarantees of freedom of

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

    common law and under statute, and protection against political discrimination in human

    rights codes; 4) fourth, I explore the nature and scope of the constitutional principle of the

    rule of law and its relationship to bureaucratic independence; and (4) fifth, I conclude

    with an analysis of the content of independence, including an analysis of the existing

    jurisprudence on adjudicative independence in administrative law.

     I do not wish to suggest that this analysis constitutes an exhaustive review of the legal and constitutional sources of bureaucratic independence; rather, I attempt to

    elucidate below illustrations of the core components of this principle. Bureaucratic

    independence represents a crucial check on the legitimate powers of the Government of

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    Sossin, “Bureaucratic Independence” Draft – December 30, 2003 the day to pursue its policy preferences. It constitutes a cornerstone of both responsible

    government and the rule of law. And yet, it is a poorly understood concept. I have titled

    this study “the search for bureaucratic independence” because the case has yet to be made

    that bureaucratic independence is necessary, workable and compatible with our

    constitutional system and the demands of responsible government. I believe the building

    blocks for the principle of bureaucratic independence are well-established in the

    Canadian constitution, but its architecture remains to be fully developed and its

    construction remains a work in progress. It is to this work that I now turn.

    I. Political Neutrality, Constitutional Conventions and Civil Servants

     The point of departure for any discussion of bureaucratic independence as a

    constitutional principle is the constitutional convention that the civil service remain

    politically neutral.10 A neutral civil service requires that civil servants limit their

    activities in support of a particular party or individual in the political system. The claim

    regarding the existence of a constitutional convention of a politically neutral civil service

    raises at least three fundamental questions: first, what is the scope of the constitutional

    convention of a politically neutral civil service; second, who is a civil servant and

    therefore subject to this convention; and third, how is the boundary between political

    neutrality and partisanship monitored and enforced?

    1) Scope of the Constitutional Convention of a Politically Neutral Civil

    Service

    The first question I have posed relates to the scope of the constitutional convention on

    political neutrality. Kenneth Kernaghan has outlined the content of the convention in an

    According to Kenneth Kernaghan and John Langford, "Political neutrality is a constitutional convention 10

    which provides that public servants should avoid activities likely to impair, or seem to impair, their

    political impartiality or the political impartiality of the public service ... “ see K. Kernaghan and J.

    Langford, The Responsible Public Servant (Halifax and Toronto): IRPP and IPAC, 1990), p.56; see also D. Siegel, "Politics, Politicians, and Public Servants in Non-Partisan Local Governments" Canadian Public

    Administration (1986) pp.1-30. See also J.E. Hodgetts, The Canadian Public Service: A Physiology of

    Government (Toronto: University of Toronto Press, 1973), p. 89.

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

    oft cited list of six key principles:

    1. Politics and policy are separated from administration; thus, politicians

    make policy decisions and public servants execute these decisions.

    2. Public servants are appointed and promoted on the basis of merit rather

    than of party affiliation or contributions.

    3. Public servants do not engage in partisan political activities.

    4. Public servants do not express publicly their personal views on

    government policies or administration.

    5. Public servants provide forthright and objective advice to their political

    masters in private and in confidence; in return, political executives

    protect the anonymity of public servants by publicly accepting

    responsibility for departmental decisions.

    6. Public servants execute policy decisions loyally, irrespective of the

    philosophy and programs of the party in power and regardless of their

    personal opinions; as a result, public servants enjoy security of tenure

    during good behaviour and satisfactory performance.11

     This catalogue in effect constitutionalizes the essence of Weberian bureaucracy: a

    vision of public administration rooted in impartiality and detachment but also closely

    associated with in hierarchy, supervision, control and secrecy.12 It amounts to an “ideal-

    type” of apolitical bureaucracy, one which Kernaghan is quick to point out has never

    really existed in practice.13 In many governmental settings, bureaucrats are deeply

    enmeshed in politics, in the sense of developing and influencing policy preferences,

    shaping legislative, regulatory and policy instruments, and defining outcomes through the

    11 This list is reproduced in K. Kernaghan “The Future Role of a Professional Non-Partisan Public Service in Ontario” Panel on the Role of Government Paper, Research Paper series (2003), p.11; and K. Kernaghan, “East Block and Westminster: Conventions, Values, and Public Service” In C. Dunn, ed., The Handbook of Canadian Public Administration (Don Mills: Oxford University Press, 2002), 104, 106. See also K.

    Kernaghan, “Political Rights and Political Neutrality: Finding the Balance Point” (1986) 29 Canadian

    Public Administration 639. It was accepted as part of the expert testimony in Osborne v. Canada, infra, among other cases.

    12 See mostly M. Weber, The Theory of Social and Economic Organization (New York: Oxford, 1947). This conception of bureaucracy as completely divorced from politics was popularized in North America by

    then political scientist Woodrow Wilson in “The Study of Public Administration” Political Science

    Quarterly, Vol. 2, No. 2 (June 1887). Weber‟s influence, and its somewhat awkward fit with Westminster democracy, is discussed in Savoie, In Search of a New Bureaucracy, supra note , at 20-27.

13 Kernaghan, “Future Role of a Professional Non-Partisan Public Service in Ontario” at p. 10. The

    politics/administration dichotomy is sometimes expressed as a policy/operational divide in which

    developing policy is considered a political matter and implementing it a bureaucratic matter.

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

    exercise of discretion and control over implementation. By the same token, political staff

    in the employ of ministers may be deeply enmeshed in bureaucratic decision-making

    around policy formation and issues management. As a former senior Ontario bureaucrat

    once opined, the idea that you can keep the political and bureaucratic roles distinct at the

    highest levels of government decision-making is “naïve and non-productive.”14 It is

    because of this commingling of the bureaucratic and political that the constitutional

    principles which demarcate the appropriate sphere of bureaucratic and political activity

    become both so daunting and so crucial. The interdependence of the bureaucratic and

    political domains of the executive can be threatened in two ways: first, when the political

    executive seeks to politicize the civil service for its own advantage; and second, when

    civil servants act for partisan ends. It has been in response to such threats that the Courts,

    elaborating upon the convention of political neutrality, have played a central role.

     Constitutional conventions are not part of written constitutional texts but arise

    from historically accepted practices and customs with respect to the machinery of

    government. In OPSEU v. Ontario (A.G.),15 the Supreme Court offered the following observation on conventions:

    As was explained in Re: Resolution to amend the Constitution, [1981] 1 S.C.R.

    753, at pp. 876-78, with respect to the Constitution of Canada--but the same can

    generally be said of the constitution of Ontario--"those parts which are composed

    of statutory rules and common law rules are generically referred to as the law of

    the constitution". In addition, the constitution of Ontario comprises rules of a

    different nature but of great importance called conventions of the constitution.

    The most fundamental of these is probably the principle of responsible

    government which is largely unwritten, although it is implicitly referred to in the

    preamble of the Constitution Act, 186716

     The constitutional convention of a politically neutral civil service is part of what

    is sometimes referred to in the public administration literature as the “iron triangle” of

14 E. Stewart, Cabinet Government in Ontario: A View from the Inside (Halifax: IRPP, 1989), p.49, quoted

    in ibid at pp.12-13.

15 [1987] 2 S.C.R. 2.

16 Ibid., at para. 85.

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

    conventions consisting of political neutrality, ministerial responsibility and public service

    anonymity.17 The fact that these duties are not part of the written constitution does not

    detract from their centrality to Canada‟s constitutional system.18 As Wade and Forsyth

    explain, writing in the British context, the convention of neutrality and anonymity for

    civil servants is often said to arise as a consequence of ministerial responsibility:

    The high degree of detachment and anonymity in which the civil service

    works is largely a consequence of the principle of ministerial

    responsibility. Where civil servants carry out the minister‟s orders, or act

    in accordance with his policy, it is for him and not for them to take any

    blame. He also takes responsibility for ordinary administrative mistakes

    or miscarriages. But he has no duty to endorse unauthorised action of

    which he disapproves, though he has general responsibility for the conduct

    of his department and for the taking of any necessary disciplinary

    action.19

    Traditionally, ministerial responsibility has been viewed as the “most important and

    most contentious” of these conventions.20 As Kernaghan has observed, ministerial responsibility is rarely defined and this lack of a shared understanding of its requirements

    “permits confusing, creative, and misleading interpretations of its meaning.”21 While the

17 G. Marshall, Constitutional Conventions (Oxford: Oxford University Press, 1984), p.210.

18 The constitutional texts also say nothing of the obligation of ministers to resign in the face of

    maladministration or the obligation of ministers to defend the actions of their ministries to Parliament, but

    these are nonetheless core requirements of Canada‟s constitutional democracy. As Andrew Heard has

    observed, “The principles of individual and collective ministerial responsibility take form mostly in the informal rules that have arisen to modify the positive legal framework of the constitution. The importance

    of these rules of responsible government cannot be overstated; without them the nature of our system of

    government would be fundamentally transformed.” A. Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991), p.48.

    19 Wade, H.W.R. and C.F. Forsyth. Administrative Law. (Oxford: Oxford University Press, 2000), p.29.

    20 K. Kernaghan, “The Future Role of a Professional Non-Partisan Public Service in Ontario” (2003) Panel on the Role of Government, Research Papers (No. 13), p.3.

21 Ibid. He cites as illustration the comments of Brenda Elliot, a former Environment Minister under the

    Tories in Ontario who testified at the Walkerton Inquiry in June of 2001 and replied when asked about her

    responsibility as Minister for the actions of the ministry, “Well, we‟re now into a very complex discussion

    about responsibility, which .. .has been debated for centuries as part of the Westminster Parliamentary

    tradition” (quoted at p.4). Kernaghan also canvasses the various jurisdictions which do attempt to spell out

    the requirements of ministerial responsibility and the distinction between an official being “answerable” and “accountable” for her or his actions (at pp. 4-11)

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