Harper’s bid to stack the public service should be blocked — no exceptions
iPolitics recently revealed that the outgoing Harper government made 49 future appointments averaging 81 days between the time of the election and the time the appointment was scheduled to go into effect. While a review of past appointments shows outgoing governments sometimes make appointments that take effect in the days after an election, none came anywhere close to the scale of what Prime Minister Stephen Harper’s office did in the final days of his government.
Why comment on this story now? Well, because it was one of the topics covered in the CBC At Issue panel on December 10, and because the panel seemed inclined to dismiss the subject on the argument that none of the appointees were overt “political hacks”. This was, in their learned view, enough to let the issue drop.
With due respect, I disagree. The real issue here has nothing to do with the incumbents’ qualifications, their partisan affiliation or lack thereof. It has to do with the legitimacy of the outgoing prime minister exercising his appointment authority for future appointments — reappointing people, in the last days of his power, whose term of appointment would be coming to an end after the general election.
The appointment authority of the prime minister and his government is an important lever to achieve the government’s agenda. In acting the way it did, the Harper government usurped part of that authority in order to continue to influence public governance after it had lost power. This is why those appointments are illegitimate and objectionable, irrespective of the objective competence (or incompetence) of the appointees.
On the partisanship issue, while it may be argued (as the At Issue panel did) that those appointments were not necessarily tainted by political factors — although some appointees do have clear partisan affiliations — let’s be clear about one thing: The Harper appointment machine did vet every single person for partisan political clearance, and the slightest shadow of any remote affinity with any organization other than those in the conservative ‘sphere’ was sufficient cause for exclusion.
The abuse of authority demonstrated by the outgoing government in this case is such that it would be justifiable to proceed with revoking all orders-in-council — and letting the chips fall where they may.
Let’s look at the particulars of those 49 appointments. The orders-in-council were passed in June and July 2015 and concerned appointments taking effect after the general election. Arguably, none of these reappointments (48 out of 49) were operational musts. Twenty-two were ‘at pleasure’ — that is, they can be revoked at the discretion of the government without any particular justification or formality. Twenty-seven are based on ‘good behaviour’ — that is, they can be revoked only for valid reasons. In addition, the four National Energy Board (NEB) appointments require an address of both Houses of Parliament to be revoked, while the rest require a simple order-in-council.
For appointments that have not come into effect, one could argue that the revocation of an order-in-council for a future appointment doesn’t count as removing a person from a position — and therefore, cause is not required. The appointees would continue in office until their current terms are completed, period. For good behaviour appointments already in effect, cause for removal would be required — including an address of both Houses in the case of NEB appointments. (It should be noted that the government won’t have a majority in the Senate until all vacancies are filled, and might need to appoint additional senators against the possibility of the eight independent senators voting with the Conservatives.)
The technique of the future appointments, also called “stocking the fridge,” is to ensure that the Conservatives held onto their institutional influence within the government as long as possible if they lost the election. This is the reason why this technique is so objectionable and illegitimate.
The government sent letters to 33 of those given future appointments by the Harper government, asking them to voluntarily give up those appointments so as to allow for a new, more open, merit-based process in which they would be “welcome to participate.” One renewed appointment announced through his lawyer that he’s renouncing the extension to his term and will retire after his current term expires in 2018.
No one else has yet agreed to renounce an appointment. One future renewed appointee announced by communiqué that he would notrenounce his reappointment.
The government’s approach of seeking the appointees’ agreement is likely driven by a desire to minimize the potential liability costs of revocation that may follow if appointees claim compensation for being revoked. While it may be a prudent approach to take, the abuse of authority demonstrated by the outgoing government in this case is such that it would be justifiable to proceed with revoking all the orders-in-council — and letting the chips fall where they may. The NDP ethics critic, Alexandre Boulerice, was certainly supportive of this approach.
Le jeu en vaut la chandelle. In other words, the principle is worth defending.
Maryantonett Flumian is the president of the Institute on Governance and a former long-serving federal deputy minister.