How public servants support democracy: a response to latest Canada 2020 study
Earlier this week IOG President Maryantonett Flumian and Executive Director Karl Salgo submitted the following Op-Ed to the Hill Times.
A recent Canada 2020 report, ‘Renewal of the Federal Public Service: Toward a Charter of Public Service,’ suggests replacing the Clerk of the Privy Council as the de facto selector of deputies with the Public Service Commission, which Maryantonett Flumian and Karl Salgo say won’t work.
In a newly-released Canada 2020 study, Renewal of the Federal Public Service: Toward a Charter of Public Service, distinguished former public servant Ralph Heintzman argues that a new “moral contract” is needed to rescue the values of a professional, non-partisan federal public service. Heintzman contends that, at the hands of successive governments and the public service’s own leadership, the lines between political and public service values have blurred. He prescribes a new Charter of Public Service that would restate public service values and ethics; revamp the role of deputy ministers as accounting officers; redesign the process for appointing deputy ministers; and set new rules for government communications.
Heintzman’s study identifies real challenges and raises important, even existential, questions about Canada’s public service. Moreover, he is certainly right that the Government of Canada does not belong to the government of the day and that institutional boundaries need to be respected. But his take on the rightful place of the public service in the broader scheme of things is off the mark—like the Gomery Report that he champions, it would carve out a role for public servants that neither ministers, nor public servants nor an informed public would ever really want— namely government by the unelected.
Just what is the role of the public service?
If you were to look at departmental legislation (not that we’d advise it) you’d find that ministers are presumed to have monumental capacities—to set economic and social policies, write regulations, negotiate treaties, manage programs, issue passports, and on and on.
And so the law recognizes that ministers necessarily act through public servants – that when legislation says “the minister” may grant a licence for this or that it’s actually some obscure bureaucrat who does the granting. Hence our working definition of the role of the public service (borrowed from the government itself): to provide policy advice and operational support to the government of the day. What’s more, it must be able to provide this support to successive governments of whatever political stripe, which means it must be non-partisan or “neutral.”
However, we need to be clear on what “public service neutrality” means. The public service is not neutral as between the opposition and the government of the day: it serves the latter and, within the boundaries of the law and public service values and ethics, works to the achievement of government’s agenda. That is how public servants serve democracy.
Public servants do not serve democracy by having an independent voice: they provide their advice in confidence precisely so that there is no “public service” position on any issue, as opposed to the position of the government. And they don’t take ownership of the government’s positions either. They just provide information about them, explain them—and obey them.
But doesn’t there come a point where a public servant—whose ethical code requires that he or she act “in the public interest”—must say no? Indeed there does. But the threshold is high, and the public servant’s responsibility to act in the public interest does not mean the public service determines the public interest.
For an unelected official, acting in the public interest essentially means three things: 1. not acting in one’s private interest or in the special interests of those one personally favours; 2. bringing one’s best professional expertise to bear on the tasks one performs; and 3. acting consistently with the agenda and direction set by one’s minister, provided it is consistent with the law, with formal government policies, and with public service values and ethics. So, yes, a public servant could and should refuse, say, to provide support for a partisan event. But he or she could not decline to implement a policy because he or she judged it not in the public interest.
With these basics in mind, let’s consider each of the four elements in Heintzman’s proposed Charter of Public Service.
First, to re-articulate public service values and ethics. Whether such a re-articulation would be worth the effort is hard to say. The government already has a lot of principles and guidance, including in the Values and Ethics Code for the Public Sector adopted in 2012. And the official documents generally get the theory right. Perhaps more words on paper would improve how the theory is put into practice, perhaps not.
It might, for example, be possible to reinvigorate the public service responsibility to provide fearless advice. However, what we suspect Heintzman longs for is a public service that feels less responsibility for the reputational health of the government.
Heintzman’s concerns here are fair enough, but the public service doesn’t operate in an ivory tower. Policies and practices that embarrass governments have never been matters of indifference for public servants. What has intensified in recent years is the pressure of the public environment. Instantaneous digital technology and 24/7 media are undercutting the deliberative, process-driven way in which governments have traditionally responded to issues. “Issues management” has emerged as a growing government need and perhaps the most in-demand skill for an up-and-coming public servant. This reality makes for fine lines that demand vigilance, but it does not mean that the public service has gone political.
It also seems that Heintzman would like to carve out added space for public servants to stand as independent guardians of the public interest—for example, by making deputy ministers as accounting officers autonomous managers of their departments, directly accountable to Parliament.
Canada’s existing accounting officer system requires deputy ministers to provide Parliament with the information it needs to hold government to account for departmental management without making them accountable in the political forum of Parliament.
It is true that in the United Kingdom permanent secretaries really do take responsibility for the management of their departments before the Parliament’s Public Accounts Committee. But importing the U.K.’s model here—where deputies have far less administrative independence and the Public Accounts Committee is much more politicized—would be unfair and could politicize public servants.
The third pillar of Heintzman’s charter would be a new appointment system for deputy ministers. It would replace the Clerk of the Privy Council as the de facto selector of deputies with the Public Service Commission—ostensibly to make them less beholden to the allegedly politicized Office of the Clerk.
This simply would not work. The deputy minister is the lynchpin between the public service and the minister. He or she has the hugely challenging job of translating the minister’s agenda into public service action. That requires deep attunement to public service values combined with the sharpest political savvy—which is no contradiction—as well as an effective working relationship with the minister. The Public Service Commission is not well placed to make these determinations. The Clerk’s capacity to select the appropriate deputy—and to make a different selection on a moment’s notice if need be—is a critical tool in his or her ability to support the Prime Minister and the government’s agenda. It’s also a key tool for making the Clerk’s statutory position as head of the public service more than honorific—which is important if the public service is to be a true institution that functions in a coordinated way.
Finally, Heintzman seeks “new rules” on government communications. No one can disagree with the principle that he seeks to realize: public resources should not be used for partisan purposes. Government communications are a high-risk area for politicization, and some governments push the boundaries more than others. But here again the existing rules are essentially consistent with Heintzman’s principles, so it’s hard to see what new rules would do. And to suggest something like the complete elimination of PCO’s communications secretariat is to lose track of the basic legitimacy of the communications function, especially in the 24/7 media age.
We don’t deny that there are problems in all of the areas that Heintzman identifies, and while we cannot agree with most of what he proposes by way of solution, we welcome this dialogue. It will help support a healthy, respectful relationship between two vital institutions—the ministry and the public service—as both evolve to meet the changing world of the 21st century.