Bill C-520 – An Act supporting non-partisan Agents of Parliament
- The Public Service Commission (PSC) has a keen interest in the proposed legislation.
- Bill C-520 has the potential to have a significant impact on the merit-based appointment system. In addition, the PSC has concerns regarding the overlap between the Bill and the Public Service Employment Act (PSEA) and the potential impact on employees and their rights.
- Merit and non-partisanship are the cornerstones of both a professional public service and the Westminster model of parliamentary government, and they lie at the heart of the mandate of the PSC and its enabling legislation, the PSEA.
Our Merit-Based Staffing Regime
- Canada has benefitted from a merit-based staffing system for the federal public service since 1908.
- The PSC is responsible for ensuring that appointments to and within the public service are based on merit and free from political influence. It reports annually to Parliament on this and other matters.
- The employees in the offices of most of the Agents of Parliament are public servants, subject to the provisions of the PSEA.
- Our merit-based appointment regime relies on a number of requirements set out in the PSEA. One of those is that only the qualifications required to perform the duties of a position are to be assessed when a position is being filled.
- That means the assessment of applicants is based only on the competencies required to do the job. And only information required for the assessment and appointment process is collected from applicants.
- Bill C-520 proposes a substantial change to this regime, by requiring all applicants for positions in the offices of the Agents of Parliament, and not just successful candidates, to provide information on their past political affiliation as soon as possible in the assessment process.
- Even though it may not be the intention of this Bill, asking for information on past political affiliation could be at odds with the PSEA and could lead to a perception that this information may be used in the selection process.
- The fact that we do not ask for information on political affiliation is, the Commission believes, essential in ensuring confidence, on the part of the public and applicants, in the impartiality and fairness of the merit-based system.
- Moreover, this requirement applies to all employees, whatever their level and whatever the nature of their duties – regardless of the differential risk that these may present.
- Additionally, this may result in challenges for Agents of Parliament in recruiting employees, many of whom may ultimately move into the broader public service given the limited opportunities for advancement in the relatively small organizations which support the Agents.
Non-Partisanship in the Public Service
- Once appointed to the public service, there is a regime in place to ensure public servants perform their duties in a politically impartial manner.
- First, the Values and Ethics Code for the Public Sector updated in 2012, requires, among other things, that public servants carry out their duties in a non-partisan and impartial manner.
- Deputy heads, which includes 7 of the 9 Agents of Parliament, are responsible for ensuring that the Code is implemented effectively in their organization and they have the tools to take corrective measures, as necessary.
- The Public Sector Integrity Commissioner can conduct an investigation of a serious breach of the Code.
- Second, there is a regime in place to regulate the political activities of public servants.
- In 2005, the PSEA was amended to recognize the right of public servants to engage in political activities while maintaining the principle of political impartiality in the public service, which reflects the principles articulated by the Supreme Court of Canada's Osborne decision.
- With respect to those political activities, they are defined in the PSEA as carrying out any activity that supports or opposes a political party or candidate, or seeking nomination as or being a candidate in an election.
- This regime is based on a balance between the rights of public servants and their obligations as employees.
- Over the past four survey cycles, the PSC's staffing survey indicates that only 5 to 7% of public servants say they are engaged in non-candidacy political activities. This could include activities normally conducted outside of working hours, such as placing a sign on their lawn, volunteering for a candidate, or using social media to express political views.
- The PSEA provides the authority to specify, through regulation, political activities that are deemed to impair the ability of an employee, or any class of employee, to perform their duties in a politically impartial manner.
- The PSEA also requires employees to seek permission if they wish to be a candidate in federal, provincial, territorial and municipal elections and provides authority for the PSC to grant permission and require the employee take a leave of absence without pay under certain circumstances.
- If elected to federal, provincial or territorial office, they cease to be public servants.
- Under the PSEA, deputy heads, a category which, as noted earlier, includes 7 of the 9 Agents of Parliament, are prohibited from engaging in any political activity, other than voting. The Chief Electoral Officer's enabling legislation goes further by prohibiting that individual from voting.
- The other two Agents of Parliament have enabling legislation that limits activities inconsistent with their position.
- The PSC may investigate an allegation, from anyone, of improper political activity by a federal public servant and, if the allegation is founded, can take the corrective action that it considers appropriate, up to and including dismissal from the public service.
- In the case of improper political activity by a deputy head, the PSEA specifies that an allegation can only be made by a person who is or has been a candidate.
- In our experience, there have been few instances of alleged improper political activity and, when those situations have arisen, the system has delivered an appropriate response.
- Since December 31, 2005, the PSC has received 101 allegations of improper political activity, of which 56 were investigated. Some 49 of these were determined to have been founded. Forty-six (46) relate to candidacy, in particular, failure to seek PSC permission to be a candidate, whereas three (3) relate to political activities in support of or opposition to a political party or candidate that were deemed to impair the ability of the employee to perform their duties in a politically impartial manner.
- In the context of a public service population of 239,010Footnote 1 at March 31, 2013 subject to the political activities provisions, in force since 2005, this is a small number of allegations of improper political activity and a small number of investigations. Over the last eight fiscal years, there was an average of six founded investigations per year, or roughly one per about 40,600 employees annually for the period of 2005-5006 to 2012-2013.
- The PSC also provides guidance and tools for employees regarding their engagement in activities in support of, or in opposition to, a political party or candidate. This serves to educate employees and helps them make informed choices.
- The PSEA clearly recognised the importance of this oversight and compliance role for the PSC. Unlike some of its other authorities which can be delegated, the PSC's authorities related to political activities cannot be delegated.
Overlap and Differences with the Current Regime
- Bill C-520 provides for a different and potentially overlapping system of oversight and compliance.
- Bill C-520 would allow an Agent of Parliament to examine alleged partisan conduct by a member of his/her staff.
- Should this partisan conduct fall under the PSEA's definition of political activities, the investigation by the Agent could potentially conflict with the PSC's investigative authority, as well as the possible outcomes and decisions regarding consequences for the employee concerned.
- Bill C-520 contains a provision that is fundamentally different from the current regime. It requires an Agent of Parliament to declare their intent to occupy a “politically partisan position” whereas the PSEA clearly prohibits most of them from engaging in any political activity other than voting. In that sense, Bill C-520 appears to be more permissive than the PSEA.
- Bill C-520 would require employees to declare their intention to hold a “politically partisan position” such as candidacy at the federal level.
- However, under the PSEA, employees cannot declare their intention to be a candidate until the PSC has granted them permission to do so.
- The PSEA also requires that, once permission has been granted to be a candidate, a notice be published in the Canada Gazette. This provides transparency about candidacy-related activities.
- For non-candidacy related political activities, the Bill introduces a requirement for employees to disclose political activities. The PSEA does not require such a disclosure. It recognizes the right of public servants to engage in political activities while maintaining the principle of political impartiality in the public service, reflecting the principles articulated by the Supreme Court of Canada's Osborne decision.
- Because of the Public Service Commission's mandate to ensure that appointment to and within Canada's federal public service is based on merit and is free from political influence and that the public service is professional and non-partisan, the PSC has an interest in any initiative that might enhance the current regime. The PSC has a number of concerns with respect to Bill C-520 as outlined above.
- For more than 100 years, a non-partisan public service has been ensured by the merit-based appointment system.
- The federal public service benefits from a workforce hired on merit, comprised of engaged citizens with a wide range of backgrounds and experience and who, once appointed, must perform their duties in a politically impartial manner.
- At the same time, the PSEA recognizes the right of public service employees to engage in political activities, while maintaining the principle of political impartiality in the public service. This regime is based on a balance between the rights of public servants and their obligations as employees.
- The PSC remains a resource for Parliament on matters related to safeguarding the merit principle and the non-partisan nature of the public service and the PSC welcomes the opportunity to contribute constructively to the study of this Bill.
Susan M. W. Cartwright,
D. G. J. Tucker,
- Footnote 1
This population includes indeterminate, specified terms and students in organizations under the PSEA as well as six other organizations whose enabling legislation stipulates that only the political activities provisions of the PSEA apply to their employees: the Canada Revenue Agency, Parks Canada, the Canadian Institutes of Health Research, the Financial Transactions and Reports Analysis Centre of Canada, the National Film Board of Canada and the Public Service Staffing Tribunal.
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