6 What does a non-partisan public service look like?
6.1 This paper has illustrated that two key elements provide the foundation for a non-partisan public service. First, the public service must have a staffing system free from political influence and in which recruitment, hiring, promotions and terminations are based on merit (or, in the case of terminations, a lack thereof). Second, public servants must perform, and be perceived to perform, their duties in an impartial manner. A non-partisan public service can be maintained only if the staffing system is protected from political influence, the merit system has been firmly implanted and the professional commitment to impartiality is widespread. 39
6.2 Because of the complex world of public administration within which public servants function, the building blocks of a non-partisan public service cannot be narrowed down to just two characteristics. Although they constitute the foundation of a non-partisan public service, merit and non-partisanship do not and cannot exist in a vacuum. Several other principles build on this foundation to help support a non-partisan public service.
A model of political neutrality
6.3 Writing in 1976, Kenneth Kernaghan outlined a model of political neutrality in a parliamentary system of government in the following way:
- Politics and policy are separated from administration. Thus, politicians make policy decisions; public servants execute these decisions.
- Public servants are appointed and promoted on the basis of merit, rather than on the basis of party affiliation or contributions.
- Public servants do not engage in partisan political activities.
- Public servants do not publicly express their personal views on government policies or administration.
- 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.
- Public servants execute policy decisions loyally and zealously, 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.40
6.4 This list represents the theory – the ideal – of a politically impartial public service and provides a framework for assessing the non-partisanship of the public service. As Kernaghan admits, however, theory and practice often diverge. In reality, this model of political neutrality has rarely been practised in its "pure" form. Although some tenets of the model, such as public service appointments and promotions based on merit, remain more or less an element of Canada’s public service, Kernaghan suggests that "some of the requisite conditions have never been met [...] and others have been altered to keep pace with changing political, social and technological circumstances".
- Take, for example, the separation of politics and policy. In theory, ministers make policy decisions and public servants implement these decisions. This notion of such a clear separation is extreme and is meant to highlight the roles and responsibilities of the minister and the public service. In reality, administration is more complicated than that. Policy and program ideas come from a variety of sources, such as the public, Parliament and legislation. Public servants provide advice and recommendations on which the minister bases his or her decision. In making these recommendations, public servants consider a wide variety of factors, which may include political sensitivities. Consideration of political sensitivities is one of a public servant’s professional and democratic responsibilities and should not be seen as a political action. Although ministers ultimately make the decisions that public servants implement, politics and policy are not, and may never have been, separate from administration. An impartial public service ensures that policies are implemented regardless of the political views of public servants.41
- This model of political neutrality also asserts that the public service is expected to be both loyal and responsive to the government of the day. As noted above, the idea of responsiveness and loyalty is complex. The public service must ensure that it provides fair and honest advice to ministers, while also implementing decisions of the minister and the government of the day, even when such directions contradict policy advice given to the minister.
- In other cases, practice diverges significantly from the ideal model. The model states that public servants should refrain from engaging in partisan politics. The courts, however, have stated that provisions banning all public servants from participating in the democratic process contravene the Canadian Charter of Rights and Freedoms. As a result, the PSEA allows public servants to engage in political activities. Despite this, the spirit of the model remains intact. Public servants are permitted to engage in political activities, as long as such involvement does not impair, or is not perceived as impairing, their ability to perform their duties in a politically impartial manner. To ensure that impartiality is maintained, Parliament made the PSC responsible for ensuring that the recognition of these rights does not impair the impartiality of the public service.
- Another example of the divergence between the model and the current trend in public administration is the principle of the anonymous public servant. The principle states that public servants act in the name of the minister and it is the minister who takes credit when things go right or accepts responsibility when things go wrong.42 This arrangement supports ministerial responsibility by allowing ministers to retain democratic control over decisions.43 Despite this, several factors have led to more visibility of public servants. For example, increased parliamentary surveillance of the public service through the Estimates process and more widespread auditing has reduced the anonymity of public servants.44 The access to information regime is also significant because it provides access to departmental and agency documents, previously unavailable, which may reveal the decision-making and administrative actions of public servants. E-mail has also affected the concept of public service anonymity. As one observer has asked, "Can (career) officials be in any sense anonymous and faceless when every one of them has an e-mail address listed on their departmental Internet home page"?45 Regardless of how the visibility of public servants has increased, the more visible public servants are, the more vulnerable they become to partisan political attacks. If public servants are attacked publicly by one party and praised by another, this could undermine public service impartiality.46 This issue is further complicated when one considers the statutory authorities and responsibilities given to deputy heads.47
Complexities of the public service
6.5 While the model discussed above outlines some of the broad elements of a non-partisan public service, other complexities of the public service world must be considered. For example, the public service is not monolithic. While a primary role of many public servants is to provide advice and execute policy decisions, not every public servant has this responsibility. Examples include the following:
- investigators across the country check to prevent fraud from occurring when payments are made to Canadians through employment insurance and income security programs;
- environmental scientists work to protect the health of Canadians and their environment;
- skilled labourers and technicians build and maintain parks and buildings;
- librarians and archivists protect and provide access to Canada’s culture, heritage and history; and
- community health nurses work in isolated communities to provide front-line health care that would not otherwise be available.
6.6 A large number of public servants work for independent boards and agencies or bodies that support Parliament, and are therefore not subject to ministerial direction.
6.7 Whatever their daily responsibilities and primary functions, all public servants must refrain from allowing policy and operational decisions to be driven by political considerations.
6.8 Although the model of political neutrality rightly notes the link between merit-based appointments and a non-partisan public service, it focuses on the professional public service (approximately 180,000 public servants) appointed under the PSEA. In addition, there are approximately 500 full-time and 1,900 part-time appointments that the Governor in Council (GiC) makes.48 These appointments include the heads of Crown corporations, and members of numerous boards, advisory bodies and commissions.
6.9 A 2004 report from the Public Policy Forum noted that some observers felt that GiC appointments are based on political considerations, rather than on the skills and ability of the candidate. In particular, the report asserted that the perception that candidates are appointed based on patronage weakens the legitimacy of the public sector.49
6.10 Another issue that relates to an impartial public service involves the movement of staff between the public service and a minister’s office.
6.11 Over the course of the 20th century, the knowledge and experience gained by individuals who worked in a minister’s office was recognized through the introduction of the priority appointment. This meant that those who had worked for a specified period of time were entitled to be appointed without competition to positions in the public service for which they were qualified. Extending this priority to ministerial staff emphasized the value of the experience gained in this type of environment. Many ministerial aides eventually made their way to the public service, where they were able to share their knowledge and expertise.50
6.12 While individuals can move from a minister’s office to the public service, public servants have also had the ability to move from the public service to a minister’s office. The public service has had a long tradition of allowing public servants to work in a minister’s office. The 1882 Civil Service Act allowed for any member of the civil service to be appointed to work with the minister.51 Such moves allow an individual to gain valuable insight into the challenges facing the government and into the policy development process. Upon return to the public service, individuals with this experience bring a specialized knowledge that benefits the public service.
6.13 In order to allow public servants to move between the public service and a minister’s office, Treasury Board policy allows public servants to take an unpaid leave of absence from work for employment as staff in the office of a minister or a member of Parliament. This policy allows a public servant to work in a political job in a partisan environment and then to return to work as a non-partisan public servant.
6.14 Until December 2006, individuals could move from a minister’s office to the public service through a priority entitlement if they had acquired three years of service. This priority right was repealed in the Federal Accountability Act, which came into force December 12, 2006. Now, individuals who have worked in a minister’s office for three years may apply to internally advertised jobs in the public service during the one-year period following their departure from the minister’s office. Although the ability to apply to internal jobs in the public service is not available to all Canadians, the opportunity awarded to individuals who have worked in a minister’s office has been severely restricted.
6.15 In its Audit of the Movement between the Federal Public Service and Ministers’ Offices, in 2007, the PSC examined the risk to public service impartiality when public servants moved between the public service and political jobs. The audit identified inappropriate patterns of movement between ministers’ offices and the public service. Although this movement involved a relatively small number of people, the inappropriate actions created the appearance of a lack of political impartiality, and did not respect the value of non-partisanship.
6.16 In its audit, the PSC recommended the development of a policy governing the movement of public servants between the public service and ministers’ offices to ensure that these moves uphold the principle of political impartiality and are effectively monitored. The PSC continues to believe that such a policy is necessary to maintain a non-partisan public service.
Other types of partisanship and opposition to a candidate or party
6.17 While the model of political neutrality states that public servants should not engage in partisan political activities, little consideration is given to the participation of public servants in non-partisan" political activities. For example, what attention should be given to public servants who participate in activities in support of or in opposition to organizations that seek to influence government policies, such as environmental organizations or groups concerned about the level of taxes paid in Canada?
6.18 Along the same lines, the PSEA does not discuss how limited public servants should be in opposing a candidate or political party. For example, if a public servant is a member of a community organization that opposes a political party based on the party’s position on a particular issue, to what extent may he or she voice opposition? Can a public servant speak on behalf of an organization that supports the gun registry, for example, because the organization feels it helps to prevent violence against women? Is this considered an activity that opposes a candidate or party that seeks to eliminate the gun registry? These are questions the public service of the 21st century will have to answer.
- 39. James B. Christoph, Political Rights and Administrative Impartiality in the British Civil Service," in Canadian Public Administration, eds. J.E. Hodgetts and D.C. Corbett (Toronto: Macmillan, 1960), 421. [Return]
- 40. Kenneth Kernaghan, Politics, policy and public servants: political neutrality revisited" Canadian Public Administration vol 19, No.3 (1976), 433. Dr. Kernaghan’s description of the model of political neutrality has been reproduced in countless documents. (See, for example, Report on Political Activity, Public Comment and Disclosure by Crown Employees, Ontario Law Reform Commission, 1986, p. 13, and The Future Role of a Professional Non-Partisan Public Service in Ontario, paper prepared for the Panel on the Role of Government in Ontario, June 2003, 11). His model of political neutrality has also been accepted as expert testimony by the courts. See Lorne Sossin, Speaking truth to power? The search of bureaucratic independence in Canada" University of Toronto Law Journal, 2005, 7, fn 12. [Return]
- 41. See, for example, Donald Savoie, Intrastate Federalism and the Civil Service," in Continuity and Change in Canadian Politics: Essays in Honour of David E. Smith, eds. Hans. J. Michelmann and Cristine de Clercy, (Toronto: University of Toronto Press, 2006), 68. [Return]
- 42. For further information, see Privy Council Office, Responsibility in the Constitution (Ottawa: 1993), chapter 6; Peter Hogg, Constitutional Law of Canada: Student Edition (Scarborough: Thomson-Carswell, 2004), 263. [Return]
- 43. Peter Aucoin, Jennifer Smith and Geoff Dinsdal, Responsible Government: Clarifying Essentials, Dispelling Myths and Exploring Change (Ottawa: Canadian Centre for Management Development, 2004), 47. [Return]
- 44. Paul Thomas, Parliament and the Public Service" in The Handbook of Canadian Public Administration, ed. Christopher Dunn (Toronto: Oxford University Press, 2002), 346-347. [Return]
- 45. As quoted in Donald Savoie, Breaking the Bargain: Public Servants, Ministers, and Parliament (Toronto: University of Toronto Press, 2003), 43. [Return]
- 46. Ibid., 213. [Return]
- 47. Examples of these responsibilities include those powers assigned under the PSEA or the Financial Administration Act. [Return]
- 48. GiC appointments are made by the Governor General on the advice of the Queen’s Privy Council of Canada (Cabinet). In addition to the appointments mentioned above, the GiC also appoints deputy heads, including deputy ministers. Although these appointments are made on the recommendation of the prime minister, traditionally the vast majority of appointees have come from the professional public service, where they were initially appointed on the basis of merit under the PSEA. [Return]
- 49. Public Policy Forum, Governor-in-Council Appointments; Best Practices and Recommendations for Reform (Ottawa: February 2004), 9, http://www.ppforum.ca/common/assets/publications/en/gov_apt_reform.pdf. [Return]
- 50. For further information on ministerial staff, see Liane E. Benoit, Ministerial Staff: the Life and Times of Parliament’s Statutory Orphans" in Commission of Inquiry Into the Sponsorship Program and Advertising Activities, Restoring Accountability: Parliament, Ministers and Deputy Ministers, Research Volume One (Ottawa: 2006). [Return]
- 51. See section 46 of the Civil Service Act, 1882. [Return]
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