POLICY MANAGEMENT ACCOUNTABILITY ACT
PREPARED BY THE CREE-NASKAPI COMMISSION
March 30, 2001
In its 2000 Report the Cree-Naskapi Commission discussed the need for improved policy management accountability in the federal
public service, noting that while financial accountability mechanisms are numerous and increasingly effective, there are no
similar policy management accountability tools. Some remarkably similar conclusions were reached by the Auditor General in his
special report entitled, Reflections On A Decade Of Serving Parliament. The Commissioners, in Recommendation # 6 of the 2000
Report made the following specific suggestion:
"There is a widespread view that, with some exceptions, ministers make decisions, or appear to make decisions, that the
bureaucracy implements only partially or not at all." 2
"The significance of this is that, unless senior officials agree with a minister's decision, the chances of that decision
being implemented are substantially reduced." 3
"Just as there are legal requirements for financial accountability, so also must there be legal requirements for policy
"There is a widespread view that, with some exceptions, ministers make decisions, or appear to make decisions, that the bureaucracy implements only partially or not at all." 2
"The significance of this is that, unless senior officials agree with a minister's decision, the chances of that decision being implemented are substantially reduced." 3
"Just as there are legal requirements for financial accountability, so also must there be legal requirements for policy accountability." 4
In Canada, governments operate under a system which incorporates a great many principles of English constitutional law, certain important American constitutional innovations as well as a very large measure of typically Canadian constitutional pragmatism. If elected officials are to act effectively on behalf of the public, and if public servants are to properly discharge their duties, all need to understand, and periodically reflect upon their respective roles as determined by our fundamental values and ideals about governance and as reflected in constitutional and administrative law. Before proceeding to a discussion of the appropriate role of public servants, it is perhaps useful to consider briefly the main constitutional principles that should be (and usually are) in the minds of those whose duty it is to serve the public.
CONSTITUTIONALISM AND THE RULE OF LAW
Useful starting points for any discussion about how governments in Canada ought to carry out their responsibilities are the twin
concepts of constitutionalism and the rule of law. Constitutional lawyers and political scientists have struggled for years to
define these terms precisely. Both however are concepts rather than merely terms. They continue to evolve as our experience with
law in a modern democracy evolves. Perhaps the best current legal view of their meaning was expressed by the Supreme Court of
Canada when, in 1998, in the Quebec Secession Reference case, it said:
"Simply put, the constitutionalism principle requires that all government action must comply with the Constitution.
The rule of law principle requires that all government action must comply with the law, including the Constitution."5
"Simply put, the constitutionalism principle requires that all government action must comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution."5
There is of course much more to be said about the application of these principles to individuals, minorities and so on, but since we are concerned here with the roles and responsibilities of government, this rather terse and contemporary definition is useful and especially appropriate because of its authoritative source.
The mere existence of these principles and their periodic application and enforcement by the courts is no guarantee that they will be respected in the day-to-day work of the public service. Indeed, in terms of the rights of Aboriginal peoples of Canada, governments have shown a consistent reluctance to recognize, affirm and apply them from early in our history until the present day. The current Minister of Indian Affairs, the Honourable Robert Nault, speaking to an Assembly of First Nations Chiefs' Confederacy in December 1999 said:
"Aboriginal people have had to go to court again and again to get even the most basic recognition of their rights, and governments have fought them every step of the way."6
The Supreme Court of Canada has pointed out that even when the rights of Indians are expressly protected in the Constitution, governments must still be forced by the courts to respect those rights.
"....the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who
lived there, even though these were expressly protected by a constitutional instrument....." 7
"It took a number of judicial decisions and notably the Calder case in this court (1973) to prompt a reassessment of the position being taken by government." 8
While Canadians can take some comfort in the fact that the Supreme Court is prepared to force governments to respect constitutional rights, this should not be necessary except in the most extraordinary situations. An understanding of and a deep respect for the twin concepts of constitutionalism and the rule of law should be an intrinsic part of the ethos of all public servants and elected officials. The idea that the laws must be respected cannot be confined to judges, it must be pervasive throughout both the elected and appointed federal and provincial public officials responsible for public administration.THE SUPREMACY OF PARLIAMENT
Another central concept of public governance in Canada is the idea of the supremacy of Parliament. This idea which evolved in Great Britain over centuries of struggle, established conclusively that Parliament, and most particularly the House of Commons, and not the King or his Ministers, would establish definitively the law of the land. Ministers, in applying that law, were to be accountable to Parliament. They would also answer to Parliament for the policy decisions and even for the administrative activities of all officials in government. Very few officials operated beyond control of a Minister and none were beyond the control of Parliament. In modern-day Canada this principle persists. It has been modified somewhat and circumscribed by our Constitution which limits Parliament's supremacy, for example by assigning certain powers to the provinces, by protecting certain rights and freedoms in the "Charter" section, by protecting Aboriginal and Treaty rights etc. In spite of all this, the supremacy of Parliament in making law within those limits and in having absolute legal control over the government including all of its officials is unquestionable both in law and in the public mind. The actual application of this control is (at the sufferance of the House of Commons) in the hands of the Cabinet of the day and its individual Ministers. At the present time the theory, as it applies to Indian Affairs policy, is clearly expressed in section 91 (24) of the Constitution Act 1867, which assigns exclusive jurisdiction over "Indians and lands reserved for the Indians" to Parliament. Parliament, in turn, has delegated the day-to-day exercise of this responsibility in section 4 of the Department of Indian Affairs and Northern Development Act which reads:
"4. The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada relating to (a) Indian Affairs;"9
Anyone reading this, and recognizing the authority of Parliament in relation to Indian Affairs, would assume that the Minister has all the authority he/she needs to give policy direction to his officials with every expectation that all lawful directions will be carried out fully, on a timely basis and to the best of the ability of those who are employed for that purpose. The extent to which this democratic control is reflected in the reality of the day-to-day operation of the Department of Indian and Northern Affairs is more problematic.
The Auditor General as recently as February 2001, noted the need for assurance that government complies with the laws passed by Parliament, he said:
"Parliament must also be able to see that the government enforces and complies with the laws it passes."10
"His Excellency the Governor General in Council reposing special trust and confidence in the loyalty, integrity and ability of (name) has appointed him to the office of (position)."11
These words, still used to-day, reflect the longstanding, traditional formulation by which many senior government officials are appointed to office. As we enter the twenty-first century, the words may seem a trifle stilted and archaic, but their hopeful intent gives some small hint of the ideals inherent in public service. It is the ideal that the public servant can be specially trusted to loyally carry out the lawful policies and decisions made by the elected officials whose mandate it is to carry out the will of Parliament and ultimately of the Canadian electorate.
The extent to which this duty of faithful implementation is not being met in whole or in part represents an important challenge for government. It is an area for improvement in how our democracy functions. Important as the problem is, it must be acknowledged that the vast majority of public servants strive to meet this duty on a daily basis. This fact however, should not obscure the need for a clear and authoritative set of rules concerning accountability for respecting the Constitution, carrying out the laws and implementing all lawful policy decisions faithfully to the best of one's ability. (If this seems unnecessarily specific, the fact that most public servants are scrupulously honest has never been seen as a reason for not having the Financial Administration Act.) The management of policy is as important as the management of money.
The examples cited below are recent and are in relation to the Department of Indian Affairs and Northern Development. It is important to note however that the problem has been longstanding and can be found in many departments and agencies across government. For example, Peter Aucoin, the respected scholar of public administration wrote in 1979 while discussing governments' habit of reorganizing repeatedly:
"these reorganizations have proceeded, in large measure, on the basis of an explicit attempt by elected political leaders to reduce some of the leverage that bureaucrats have been able to develop over the past few decades in respect to not only the initiation of policy but also its negation at either the formulation or implementation stages." 12
It is a commonplace observation that this type of problem is endemic, a function of normal human shortcomings, inevitable and so forth. None of this can justify ignoring the issue or failing to take specific steps to minimize it. In the case of some areas of the Department of Indian Affairs and Northern Development, the Commissioners believe that the problem is making many policy initiatives ineffective and is reducing to impotence, in some cases, attempts by Ministers to improve the day-to-day living conditions in First Nations communities. The experience of the James Bay Cree and Naskapi provides a number of examples. In some cases it is possible to muddle the issues because of the complex nature of the legal and policy context in which they occur. This problem merely reinforces the need for clear and enforceable rules. One of the earliest examples since the passage of the Cree-Naskapi (of Quebec) Act occurred in 1986 when an Assistant Deputy Minister of Indian Affairs asserted, in testimony before the Cree-Naskapi Commission, that the government was not bound by an Agreement which the Minister had signed with full knowledge that his officials did not approve of it. In this case it was argued by the official that the Minister had not secured proper authority from Treasury Board. This failure was not used to argue that the entire agreement was invalid but merely that the parts with which the official disagreed were invalid. While the Department made as its principal excuse, its failure to secure internal approvals, the agreement which the Minister signed in public states in its conclusion:
"What was agreed to by the Working Group and which is stated herein, is also reflected in the Cabinet document (1984) respecting the proposed legislation and in the related Treasury Board Submission."13
"It should also be pointed out that the Cree and Naskapi representatives viewed the proceedings as negotiations and that the Cabinet decision is a ratification of these agreed principal points." 14
When on August 9, 1984 the Minister of Indian Affairs signed the agreement at a public meeting he said:
"Officially, I am here today to preside over the final act by the federal government - in the sense of the monetary responsibility that we had under the Cree-Naskapi Act" 15
Finally, just prior to signing the agreement, the following exchange took place between Grand Chief Billy Diamond and the Minister:
Chief Diamond: "I just wanted to make - to ask - one final point." 16
"....the Deputy Minister has refused to sign the Statement of Understanding in respect to the funding. Will the Minister now sign that Statement of Understanding and commit the federal government to those figures that were negotiated and arrived at....?" 17
Minister of Indian Affairs: "I was prepared for this Chief Diamond, and show me the piece of paper and I will sign."18
A reasonable observer of this ceremony would think that a binding agreement had been signed. No reasonable person would think to ask, "But Minister, have your officials secured all the necessary internal approvals? Can we be sure that your staff will not repudiate the parts of the agreement which they don't like after you're gone?"
Clearly some effective mechanism must be found to ensure that measures adopted by Parliament and decisions taken by Cabinet will not be reversed by officials who may not agree with them.
Furthermore, unelected public servants exercise discretionary authority in many areas of policy implementation. Presently, there are three important ways of exercising democratic control of the bureaucracy: through parliamentary committees; through the reports of the Auditor General; and through freedom of information legislation. These are useful mechanisms which should remain; although parliamentary committees should be reformed and made more effective. However, in our view, a Policy Management Accountability Act would be the most effective way to achieve policy accountability of public servants.
The public interest might be served by having an act such as we are suggesting make a distinction between the traditional concept of "ministerial responsibility" and an updated concept of the accountability of senior public servants. As Denis Desautels, the Auditor General of Canada said in his report of February 27, 2001:
"In every Westminister-style government, ministers are responsible to Parliament for the state of their departments. Unlike other countries, however, Canada has never modernized its doctrine to distinguish between the minister's area of public responsibility and that of his senior public servants." 19
While public servants must be accountable for the faithful implementation of all lawful policy decisions, they must also be able to give honest advice without fear or favour. Ministers are entitled to have all policy alternatives, well researched and objectively stated in order that they can make the best possible decisions. This will not of course be possible if their officials feel obligated to present only acceptable options. Public servants must have the personal integrity as well as the legal protection needed to give frank, timely and complete advice. There must be a positive duty to provide advice that is:
|1.||Within the parameters of the Constitution, relevant legislation and judicial precedents,|
|2.||Based upon competent and complete research,|
|3.||Provided on a timely basis,|
|4.||Including all feasible alternatives, (not merely the preferred option of the advisor)|
|5.||For which fiscal implications have been fully spelled out.|
There must be in place a system of incentives and protections to maximize the likelihood that advice of this sort will be rewarded and not penalized. Some of the elements of such a system might include:
|1.||High standards in recruitment of public servants,|
|2.||Competitive salaries and other benefits,|
|3.||Relative security of tenure,|
|4.||A code of ethics and an Ethics Commissioner,|
|5.||Recognition of meritorious service.|
Once advice has been given, a public servant has a duty to respect any lawful decision and to carry it out to the best of his ability without regard to his personal assessment of its wisdom. Inability to do this in good conscience should lead the official to resign from his position. There can be no element of choice about whether or not to implement lawful policy or a lawful decision.
Any policy accountability legislation ought to include what have come to be known as "whistle blower" provisions. Whenever a public servant becomes aware of illegality or serious wrongdoing in government he has a duty to deal effectively with the problem. As an employee of the public, there must be conscious awareness of a duty to the public which may on rare occasions transcend the duty of loyalty to a particular Minister or even to a particular government. As with any other duty there must be adequate protection so that the duty may be carried out without fear of job loss, lack of career advancement, or pressure to carry out the duty in an improper fashion.COMPONENTS OF POSSIBLE LEGISLATION
A Policy Management Accountability Act should be drafted after a wide-ranging review of the nature and extent of the policy accountability issues which we have discussed. This review should include departments and agencies across the entire administration of the federal government. The analysis contained in such a review should be based upon a thorough examination of a broad sample of Cabinet and Ministerial decisions on policy, a review of documentation concerning implementation of these decisions, a series of in depth interviews with former Ministers as well as with "watchdog" officials such as senior staff of the Auditor General, academic specialists and a cross section of public interest groups.
Such a review ought to be conducted by an independent body with the authority of a public inquiry to obtain documentary evidence, testimony etc. This independent body could consist of three individuals such as a former Minister with special interest and expertise in public administration, a leading academic in the field and an interested representative of the public at large with demonstrated interest and experience.
While it would be unwise to prejudge what the findings and recommendations of such a review might be, it could in general be expected to suggest mechanisms for greater policy accountability which would include legal consequences for non-compliance with lawful decisions as well as appropriate protection for public servants who believe upon reasonable grounds that a decision is unlawful or that serious wrongdoing has occurred.
Among the specific provisions which might be contained in a Policy Management Accountability Act are the following:
|1||A section requiring all public servants to uphold and defend the Constitution of Canada, all federal and provincial laws and regulations and all court decisions.|
|2||A section requiring that federal departments and agencies comply with the principles of natural justice and the duty to be fair.|
|3||A section requiring compliance with orders-in-council, all lawful policy decisions, ministerial orders and decisions as well as lawful directives relating to public administration.|
|4.||A "whistleblower" section establishing the right and the duty of all public servants to report to the Federal Ethics Commissioner any of the following:|
|5.||A Federal Ethics Commissioner should be established with all of the powers of a public inquiry. The Commissioner
should be appointed by a committee consisting of the Chief Justice of the Supreme Court, the Speaker of the House
of Commons and the Deputy Speaker of the House of Commons. This Commissioner would replace the current Ethics
Counsellor. The Commissioner should report quarterly to the House of Commons, and should be able to accept
representations from any current or former public servant or any member of the public. No one making a report to
the Commissioner should be subject to any penalty unless it is proven that he acted in bad faith or from malice.
The Commissioner could determine whether or not the representation was based upon reasonable and probable grounds.
Findings of the Commissioner should be reported to the person filing the representation, the Minister concerned and the Prime Minister. These should include: the original complaint, the results of the Commissioner's review and the recommendations. The Commissioner could keep confidential any details, the disclosure of which would seriously harm the public interest or compromise the administration of justice.
|6.||The Federal Ethics Commissioner would also have the power to recommend penalties including reprimand, suspension, demotion and dismissal. In cases where these recommendations concern a Minister or Deputy Minister or the head or deputy head of a federal agency, the name of the individual, the recommendation(s) and the reasons therefore would be included in the regular Report to the House of Commons.|
|7.||The legislation should include an indemnity provision to protect the Commissioner, persons filing the representations and witnesses providing that each has acted in good faith and without malice.|
|8.||A Policy Management Committee chaired by the President of the Privy Council should be established to track the implementation of legislative obligations as well as policy decisions and Cabinet/Ministerial directives. Public Servants violating sections 1, 2 or 3 could face penalties including reprimand, suspension, demotion and dismissal. In addition, current Criminal Code provisions relating to breach of public trust etc., would continue to apply in appropriate circumstances.|
|9.||The Public Service Act, the Public Service Staff Relations Act and other legislation should be reviewed to identify any consequential amendments needed|
The first step for government to take, is to agree in principle to the need for a Policy Management Accountability Act. The second step is to establish a small group to review the issues in some depth and recommend specific legislation. The final step is to enact such legislation and make arrangements for its implementation. All of these steps could be completed well within the mandate of the present government. The Commissioners hope that the government will address these concerns at an early date.
|1||Cree-Naskapi Commission, 2000 Report of the Cree-Naskapi Commission, p. 10.|
|2||Cree-Naskapi Commission, 1998 Report of the Cree-Naskapi Commission, p.7.|
|3||Ibid., p. 7|
|4||Cree-Naskapi Commission, 2000 Report of the Cree-Naskapi Commission, p. IX|
|5||Supreme Court of Canada, Reference re. Session of Quebec, 1998 (unreported), para. 72.|
|6||Hon. Robert Nault PC, MP. Speaking Notes for an Address to the Assembly of First Nations Confederacy of Chiefs, Ottawa, December 9, 1999.|
|7||Supreme Court of Canada, R v. Sparrow , 3 C.N.L.R. p. 177|
|8||Ibid., p. 177|
|9||Department of Indian Affairs and Northern Development Act.|
|10||10 Auditor General of Canada, Reflections On A Decade Of Serving Parliament, Ottawa, 2001, para. 10.|
|11||Wording used in certificates confirming many senior appointments made by Order-in-Council.|
|12||Aucoin, P., in Public Policy in Canada: Organization, Process and Management, (Doern & Aucoin, Eds.) Gage, Toronto, 1979, p. 23.|
|13||Cree-Naskapi Commission, transcript of testimony at a Hearing held in Hull, Quebec, October 30, 1986, pp. 3 to 38.|
|14||Statement of Understanding of Principal Points Agreed to By the Cree-Naskapi (of Quebec) Act Implementation Working Group. (As reproduced as Appendix A to the 1986 Report of the Cree-Naskapi Commission. P. VIII.)|
|15||Ibid., p. VIII|
|16||Transcript of video tape recording of the signing of the Statement of Understanding August 7, 1984 (as reproduced in Appendix B of the 1986 Report of the Cree-Naskapi Commission. P. IX|
|17||Ibid., p. XI - XII.|
|18||Ibid., p. XI.|
|19||Auditor General of Canada, Reflections On A Decade Of Serving Parliament, Ottawa, 2001, para. 307.|