LA NOUVELLE GOUVERNANCE PUBLIQUE ET LA COMMISSION DE LA FONCTION PUBLIQUE
vol. 36, numéro 1, 2006
In 2003, a new Canadian public-service staffing regime was established with the Public Service Modernization Act. This new regime is unique to Canada among the major Anglo-American systems to which the Canadian public service is usually compared, including Australia, Britain, New Zealand and the United States (Halligan 2004). The reason lies in the fact that the Canadian regime maintains an independent authority for staffing the non-partisan, professional public service, even though it is expected to delegate its authority to deputy ministers, who, in turn, should delegate to managers as low down the hierarchy as possible. In these other jurisdictions, by contrast, authority to staff has been devolved directly to the public-service executives in departments of executive government. The United States has long had this model, even though the American public service also contains a very large number of senior management positions that are staffed at the discretion of the president. The three Westminster jurisdictions changed their public-service staffing systems in the context of the so-called “new public management.”
In this paper I outline and assess the rationale for the maintenance of an independent authority for the staffing of the Canadian public service. The fact that Canada was comparatively slow to institute major reforms in the human resources management arena in the reform era labeled as “new public management” has generally served it well. By the time that reforms on this front made it through to the legislative process at the turn of the century, the dynamics of what I call the “new public governance” had clearly manifested themselves. In my view, these dynamics fully justify the maintenance of an independent public-service staffing authority in order to protect and promote the public interest in the institution of a non-partisan, professional public service.
The first part of the paper looks at how “new public management” advances the devolution and thus dispersal of management authority to the public-service executives of departments as the crucial means to improve the management of resources in the public sector. It is also emphasizes the extent to which this empowerment of managers assumes that public-service staff should be treated as simply one “resource” among others, in order that executives have the flexibility to manage their resources as they see fit. The second part considers how the “new public governance” had emerged by the time that reforms to the staffing system were at the top of the agenda. The third section looks at why the non-partisan, professional public service model survived the early assumptions about its demise at the outset of “new public management”. The fourth section looks at the two principal risks in staffing the public service – political influence and bureaucratic patronage. The fifth section considers the status of the Public Service Commission as an independent agency. The final section outlines what might be done to strengthen its independence.
The impetus to management reform: new public management
The modern public management reform era began in the 1960s as public administration began to be subject to analysis and evaluation from a managerial perspective (Lindquist and Paquet 2000). In Canada, the Glassco Commission on Government Organization epitomized this development, dominated as it was by the new breed of management consultants then coming on stream in the private sector (with Grant Glassco, the commission chair, being one of the most prominent).
Let the managers manage
The central conclusion of the Glassco commission, as it was for reports of a similar nature elsewhere, was the need to enhance management in the public service. By then public administrators were widely perceived as exercising significant power and influence in what today we call ‘governance’, that is, the framing of the public policy agenda, the development of policy options, and the advising of government on the relative merits these options. The commission did not quarrel with the critical role played by the senior public service in governance on the policy front. But it did single out what it took to be major shortcomings and deficiencies on the management front. In particular, it singled out deficiencies in the management of departments as organizations, the management of public money as financial resources, and the management of public servants as personnel (now human resources). Simply put, it portrayed public-service executives as managerially impoverished, lacking the required strategic management perspectives and attitudes, and at the same time, required to comply with corporate-government administrative rules and procedures not of their own making.
As elsewhere, the impoverishment of management in government was attributed largely to an excessively centralized structure of management authority, including the Treasury Board, the Finance Department, and the Civil Service Commission. The original rationale for such centralized command and control was the perceived need to protect against the risk of the abuse or misuse of both public financial resources and public-service appointments by ministers or public servants in the executive branch of government.
The result was a period of reform that began in the 1960s, in which a good deal of decentralization of authority was effected across a broad front of public administration. It was directed at enhancing management by deregulating the corporate management controls that had been developed and enforced by central agencies, including the Civil Service Commission, and by delegating or even devolving management authority to the departments of government under ministerial direction and management, headed by deputy ministers (or the equivalent). The assumption, by this time, was that the gains to be had by improved management via the empowerment of the line managers, who actually managed organizations and public-service programs, outweighed the risks of diminished corporate controls over line managers.
The priority of policy analysis
The first impulses to improved public management in the late 1960s were almost immediately offset by a second element in contemporary management at the time, namely, the attention given to what was then prescribed by the leading management guru, Peter Drucker, as ‘management by objectives’. This prescription fit very well with the actual development of the Canadian administrative state at the time, in which the professional public service played a critical governance role. It served to justify the significant emphasis on the policy development and formulation role of the public service. Senior public servants increasingly were focused primarily on the policy, rather than the management, side of governance and public administration.
It helped enormously at the time that the Liberal prime minister who acted on the Glassco commission report, namely Lester Pearson, was a former member of the professional public service (indeed, a former deputy minister of the prestigious Department of External Affairs). Equally, if not more, important, Pierre Trudeau, who succeeded Pearson as prime minister, was a policy-oriented public servant’s model political leader – an intellectual who conceived governance in cybernetic terms (Aucoin 1986). It also helped, of course, that, at least at the out set, this was a period of expansive program creation, spurred on by increased public spending.
In very short order, improved public management, as propagated by the managerialists such as Glassco and Drucker, was quickly displaced as a political priority by the emphasis on the enhanced policy function of the public service, even at the Treasury Board Secretariat, the new central agency hived off from the Finance Department to advance the managerialist reforms. Ministers were interested in policy and programs. The senior public service took their cues from them, as did junior public servants with ambitions. Positions that focused on the policy side of public administration were the positions that attracted those who wanted to be where the action was and where one could be noticed.
Public management reforms continued apace, nonetheless, although the record on decentralization was mixed. The centre itself, especially the newly created Treasury Board Secretariat – as the ‘general manager’ of government – and the new Public Service Commission, expanded the scope and intensity of the corporate management regime. By the late 1970s, Canada is generally considered to have surpassed these other Anglo-American jurisdictions in terms of the complexity and sophistication of its central agency apparatus (Campbell 1983). Moreover, given the linkages between the Liberal government ministry and the public service, especially as established in its central policy and management agencies, there was comparatively little concern about either the influence of the public service over ministers or the ability of the public service to manage public services. Although the Trudeau government had begun with a concern over the influence of line departments over their ministers, this concern disappeared as the central agency apparatus expanded to check and counter this influence. The prime minister gained confidence in his senior public-service advisors as well as the deputy minister community (including those whom he took a personal interest in appointing). This was not the experience elsewhere.
Reforming public management
The “new public management” movement emerged in the late 1970s from essentially two concerns: first, public servants had too much influence over ministers; and, second, public servants had too little interest in managing efficiently (Aucoin 1995). In other words, the initial concerns with improved management, in Canada and elsewhere, were displaced by the attention given to policy and program development by senior public servants. This gave them influence in governance. It also meant they paid scant attention to management.
For Margaret Thatcher, the British Broadcasting Corporation’s comedy “Yes, Minister” was a documentary on minister-public servant relations in Britain and the culture of the senior ranks of British senior public service that presided over, but did not manage, public services (Borins 1988). “Yes, Minister” had a distinct “public choice theory” flavour, created, as it was, by an economist who had been trained in this American intellectual tradition. Public choice theory depicts public servants, as the professional agents of elected politicians, as able to manipulate their supposedly ‘political masters’ (or principals) by virtue of their knowledge, experience and control over critical information. Public servants are also portrayed as disinterested in economy and efficiency because they are motivated by self-interest, namely, feathering their own nests with the perks of office under their control. For Thatcher, the non-partisan, professional public service was, at its worst, a self-serving bureaucracy composed of budget-maximizing bureaucrats (Blais and Dion 1991).
In New Zealand, the concerns about the dysfunctions of bureaucracy were also theoretically inspired, although, in this jurisdiction, “agency theory”, a close relative of public choice theory, but less normative in its portrayal of the public service as a profession, was more influential (Boston 1991). In addition, the theory was deployed to analyze the situation in New Zealand by those who were pushing for public management reform. These reformers were from the public service itself, primarily from the Treasury department, rather than politicians, although political leaders were quick to take up the lead.
Although “new public management” had these two concerns front and centre at the outset, public management reforms in Britain, New Zealand and Australia were soon initiated in ways that brought the second – the improvement of public management from a managerialist perspective – to the forefront. In part, it came to the forefront in the late 1970s because, unlike the 1960s, the management of public spending was now deemed to be a major problem, with increasing deficits and debts the norm virtually everywhere. Tackling expenditure restraint required managers who could pursue economy and efficiency in management. And, there was now much less interest in expanding the policy scope of government with new programs. Indeed, Thatcher and her American counterpart Ronald Reagan were interested in ‘rolling back the state’ for ideological reasons as well as pragmatic reasons. In this context, bureaucrats were unlikely to be able to exercise much policy influence over their political masters: their political masters had a clear agenda that required precious little, if any, public-service policy analysis or advice. In New Zealand and then Australia the focus was more pragmatic, in part because the budget downsizing was conducted by Labour governments, although the financial management reforms were as dramatic, if not more so, than in Britain or the United States.
Public servants as resources
The management reform agenda that emerged from this context focused on the management of financial and human resources, with economy and efficiency being the principal criteria.1 Reducing spending and increasing efficiency became the strategy of management reform. The latter was to counter the former so that, as the rhetoric insisted, that there need be no diminution in the quality of public services. The mantra was that ‘more with less’ was possible with improved management. The claim that budget-maximizing bureaucrats built budgets to have as much ‘fat’ in them as they could get away with in order to fund their various perks was widely accepted in several quarters. Claims that millions, even billions, of dollars could be saved if the fat and waste due to inefficient and bureaucratic management was cut were rarely challenged, even by those supposedly in power and thus responsible for the budgets in place.
Beyond budgetary restraint that obviously could be imposed top-down, there was an increasing acceptance that improved management demanded the devolution or delegation of management authority over all resources used to produce and deliver public services. Good management requires that managers have the flexibility to deploy their resources as they judge best. To be efficient, they need to be able, as necessary, to substitute different kinds of resources for one another; to purchase good and services from the marketplace rather than make them; and to contract out with the private sector for the delivery of their services rather than deliver them directly. Resources, in other words, need to be managed in an integrated manner, rather than in the disjointed manner that can result where several central agencies have control over the various resources used by departments in producing and/or providing public goods and services.
According to this script, public-service personnel are simply ‘resources’. They may be described as ‘human’ resources, but this does not make them any less a resource to be managed in the most efficient manner possible, including being substituted for by other resources. Human resources are among the ‘inputs’ over which managers need to have control if inputs are to be managed efficiently in producing the required ‘outputs’. Although there were variations by place and time, the general trend was to give managers enhanced, if not exclusive, control over their departmental resources – human, financial and otherwise, including various kinds of materiel and real property. In the three Westminster systems of Australia, Britain and New Zealand, once powerful central agencies for public-service staffing and human resource management were greatly diminished in their authority, functions and influence. In every instance, they lost their exclusive authority over public-service staffing.
Ambiguity about the public service
As the “new public management” evolved further, the emphasis shifted to the achievement of desired policy outcomes, and not merely of the efficient production of outputs. And, there emerged a new appreciation of the value of human resources, as in “people are our most valuable resource”. Yet throughout this period of reform, reformers – ministers and officials alike – were mostly ambiguous about the role of the public service as a non-partisan institution of government and not just a workforce employed by government departments. The ambiguity is not novel to the new public management. It acknowledges the tensions, even contradictions, which are inevitable in trying to have a non-partisan but politically responsive public service that participates in public governance and also accepts the dictates of managerialism.
The idea that the public service was merely a workforce of employees to be deployed and managed as simply a ‘resource’ in the most efficient manner possible gained considerable currency. On their own or under policy directives, managers cut staff, contracted out services, subjected services to competitive tendering, or otherwise re-engineered their organizations with huge consequences for the public service as an institution of government. In not too short an order, however, there began to emerge concerns at the centre about not only the fragmentation of the public service as a workforce but also its diminution as an institution with corporate memory, competence and values. Further, there emerged concern that excessive attention to efficient management was diminishing the quality of the public service, as managers focused on producing immediate results whatever the long-term costs.
At the same time, the ideal of a non-partisan public service, independently staffed on the basis of merit, was usually upheld publicly through the dominant period of new public management during the 1980s and 1990s. But virtually everywhere, the numbers, roles, influence, and legitimacy of political staff and/or political staffing in the public service were increasingly advanced, even in the United States where there was a longstanding tradition of politicized public service. As the basic reforms of the new public management became embedded, new forces were emerging that focused more on the partisan-politics of governance, and public administration as governance.
The context of reform in Canada: the new public governance
Along with their counterparts in other jurisdictions, Canadian reformers were keen on advancing the major tenets of the new public management, even if they were slow off the mark. At the same time, there was always the concern in some quarters that the Canadian context was not entirely conducive to the kind of devolution of management authority already in place in other jurisdictions. Some worried about the special American influence on Canadian public administration, in this instance the attraction to a greater partisan-politicization of public service staffing.2 Others were concerned that the longstanding Canadian tradition of ministerial attention to the administrative dimensions of public service delivery with regional or local consequences would become even more pronounced if their deputy ministers possessed the full authority to staff their departments. More generally, there was an increasing concern about the emergence of a new pattern of public governance alongside the development of the new public management.
The “new public governance” is like new public management in that it is not, in fact, an entirely new phenomenon. Rather, it is new in that a number of related developments have occurred with a new intensity. The developments here include:
Concentration of power
In Canada, the new pattern of governance emerged with the enhanced powers of the prime minister in the government of Pierre Trudeau. Although the formal status of the prime minister was not changed in any way, he led the cabinet in ways that formally institutionalized collective decision making but informally resulted in increasing prime ministerial (even ‘presidential’) government. This perception was exacerbated by his expanding the size and role of his personal office, the Prime Minister’s Office, and his appointing a personal favourite as Clerk of the Privy Council and Secretary to Cabinet, and thus head of the Privy Council Office, much to the chagrin of the deputy minister community. By the end of the Trudeau period, the idea of a prime minister’s ‘court’ – composed of a select mix of ministers, political staff and personally anointed public servants – was well established in the political press. It became conventional wisdom in the 1990s with the publications of two books on Prime Minister Jean Chrétien’s regime, one by a leading political scientist, Donald Savoie (1999), the other by a leading journalist, Jeffrey Simpson (2001).
This new pattern was nearly universal, however. Although it was relatively easy to identify in Canada, especially since Canadian prime ministers have operated with fewer institutional or party checks on their powers as first minister and as party leader (Aucoin, Smith and Dinsdale 2004), the forces driving this new pattern were not uniquely Canadian. The same dynamics have been evident elsewhere, especially in Britain, Australia and the United States (where the equivalent of prime ministerial government is the ‘imperial presidency’ characterized by the virtual abandonment of the intended checks and balances in the American system). New Zealand commentators worry about the phenomenon as well, although in that system there have emerged a number of checks on a prime minister’s powers, including the fact that the top public-service executives are not appointed by the prime minister and prime ministers have not had single-party majority government since the adoption of the electoral system of proportional representation in the mid-1990s.
Politicization of governance
This concentration of power is accompanied by various other elements that serve to politicize governance. Governance in one sense is political by definition, of course. However, over the course of most of the 20th century, the pervasiveness of partisan-politics in respect to the public service diminished as staffing the public service was removed from political control and influence, based on merit, and became professionalized. Over the past quarter century, however, two things happened.
First, as noted, there was the concern that emerged with new public management that public servants were not as responsive to political direction as they should and could be made to be. This led to some personalization of staffing by prime ministers, even if it was not always or even usually partisan-political in character or inspiration (Campbell and Wilson 1995). Wanted were public servants who, even if non-partisan, were keen to advance the government’s agenda. As Thatcher was wont to ask in considering candidates recommended for senior appointments: “is he one of us?” Not surprisingly, the same considerations also led to a greater deployment of political staff, especially as ministerial advisors.
Second, there was the response to the perceived need to take greater political control over the administration of public affairs, broadly defined, given that the most insignificant of administrative matters can become politicized. Alongside the efforts to reform management by deregulating, decentralizing and delegating management functions and authority, there emerged, paradoxically, this greater centralization of political power and control over government.
Determinants of politicization
The potential politicization of virtually any aspect of public administration arises as a consequence of several developments. Some are explicitly intended to constitute checks and balances on government. They include:
The possibility of politicization resulting from these developments encourages political executives and their political staff to try to ‘manage’ these procedures and processes. Their efforts invariably put pressures on public servants to assist their political masters in avoiding unwanted political exposure. Although public servants must comply with various requirements in connection to these three developments, in addition to the requirements of the public service values and ethics code as they pertain to these procedures and processes, responsiveness to political masters has long been a traditional Canadian public service virtue. Keeping ministers out of ‘political trouble’ has also been a much touted skill of the senior public service. It would not be out of character if Canadian public servants tended to side with their political masters in seeking to manage the political risks accompanying these checks and balances.
In addition to these developments that are intended to act as checks and balances on executive government, there are several developments in information and communication technology that have contributed to greater government exposure. The Internet in particular has had profound consequences for the practice of confidentiality in government. There is also the constant exposure of the public’s level of support for the government and its individual policies made possible by the frequency with which the mass media commission public opinion polls. The media themselves have been transformed as a consequence of the intensity of competition, within and between the various traditional and new media. This transformation, in turn, has led to a more aggressively intrusive scrutiny of government officials – ministers, political staff, and public servants – as well as a new politicization of political commentary, including in what used to be deemed to be non-editorial ‘news reporting’. Finally, the last three decades have seen the emergence of a much less deferential citizenry with greater expectations of public accountability by government officials.
Taken together these developments have clearly increased the pressures on governments. They are not partisan-political in intent, but they are partisan-political in their consequences, given that competition in democratic governance is partisan-political. Equally important from the perspective of this paper, this competition is also increasingly personal, as partisan-political leadership has become personalized in its organization and management. This phenomenon is manifested clearly in the recent leadership struggles within governing parties in virtually all jurisdictions, including Australia, Britain and Canada. In every case, the personalization of party leadership parallels sharp declines in party identification in these jurisdictions, a nearly universal trend.
In several respects, the personalization of partisan-political leadership intensifies the political pressures on the public service even more so than traditional partisan-political forces. The loyalties, interests and careers of the participants are tied, first and foremost, to an individual political leader, and not to a political party as an institution. Their intensity derives from the fact that their temporal perspective is invariably immediate and pressing.
The non-partisan, professional public service under stress
The model of a non-partisan and professional public service was taken for granted as an important dimension of public service reform in the first decades of the 20th century. By the end of the century it was under stress, if not in question. In almost all jurisdictions, the model suffered from its association with the negative images of bloated and inflexible bureaucracy, of civil servants privileged with rights and entitlements, and of trade unionism. Among other things, the liberalization of the employment status of public servants, union and bargaining regimes, contracting-out practices, and cuts to public-service staff numbers have significantly altered some aspects of the traditional public service model.
The issue of competence
But the model has survived in some large part because there has been no effective alternative. Those who assumed that the labour market external to the public service could be counted on to provide the public service with an alternative supply of managers and executives have been disappointed. Everywhere governments have struggled with maintaining competence when recruiting externally for senior positions. Even the American government, with its longstanding tradition of filling large numbers of senior posts with outsiders appointed at the discretion of the political executive, has found that the supply of competent outsiders (partisan or not) is no longer sufficient, if it ever was, to fill all positions.3
Further, of course, once a government goes outside to fill positions, it risks that some positions will go to partisans, some of whom will be appointed for purely patronage reasons and without the necessary competence. Where there is executive discretion over such appointments, as in the United States, there is precious little, beyond public disapproval, to stop the erosion of competence once it starts. In the major national Westminster jurisdictions, the risks of political intervention or influence with respect to external recruitment and open competitions for senior positions have been acknowledged and a number of measures adopted. But even where the risks of partisan-politicization have been minimized or checked, the record of external recruits from the private sector, especially at the most senior levels, has been a disappointment, including those brought in with some fanfare.4
Some view the matter as a problem of not providing those external recruits who have little or no public-service experience a period and process for adjusting to the environment and culture of the public service (Kroeger and Heynen 2003). In some instances, external recruits to senior positions cannot overcome their entrenched private sector beliefs and values about governance and management, beliefs and values that simply cannot be made to fit the normative and empirical realities of public governance and management. Some commentators think that private sector experience is inadequate in developing the intellectual capacities to deal with ambiguity and nuance.
In any event, the main conclusion to draw here is that competence in the public service is largely a function of knowledge and skill that come primarily from experience in the public service. They are not simply generic competencies that one can learn in any setting.5 In short, a professional public service must have some elements of a ‘career’ public service, that is, senior executives with sufficient public service experience to have actually developed, and hopefully to have already demonstrated, the necessary leadership competencies. This means that the public service must be managed, in some respects, as an institution of government, and not merely as a collection of departmental workforces under the sole direction of departmental deputy ministers.
Critical mass as requisite
The model of career public service has survived because virtually everywhere it has come to be acknowledged, sometimes reluctantly and grudgingly, that government and citizens are best served by public servants who are products of a public service that is developed and managed as a non-partisan institution of government. This does not necessarily require a career public-service with a staffing regime closed to external appointments at management or executive levels, although it usually does mean that the very top positions need to be restricted to those who have demonstrated their competence in the public service, since there is no time to learn on the job at the very top.6
In short, as the Tait report on public service values and ethics notes, an effective public service requires “a critical mass of persons” who have served “a sufficiently long apprenticeship to acquire the skills and culture of [public-service] professionalism” (Canada 1996; as reprinted 2000, 23). Only to the extent that it has a critical mass of professionals will a public service possess the institutional capacity to continuously transfer the requisite knowledge and values across to peers and down to the various ranks of management.
Interestingly, international organizations such as the World Bank and the International Monetary Fund, that were once regarded as less than sympathetic to the public service as an instrument of socio-economic development in developing countries, have come to preach the virtues of the model of a professional public service as a prerequisite to good governance that, in turn, is regarded as a prerequisite to socio-economic development. Similarly, as noted, almost all Westminster governments now officially declare that a non-partisan, professional public service is an important part of good governance.
Staffing the public service independently
Although the public service is first and foremost a subordinate institution, subject to the direction and control of ministers, it will be an independently staffed institution if it is to be a non-partisan, professional public service. Independent staffing of the public service means that ministers have no authority to intervene or exercise influence in staffing. It means that a critical executive function is thereby removed from ministers as the executive heads of government departments.
One option for independent staffing is to assign the authority to a central staffing agency that will staff the public service directly. This was the original option chosen in Canada with the Civil Service Commission. A second is to assign staffing authority to the administrative heads of departments – deputy ministers. Canada uses this option in a very few departments, including the Canada Revenue Agency, where the deputy minister (or equivalent) has the authority to staff her or his organization.7 Leaving aside non-departmental corporations and agencies, however, the norm for departments is that they are staffed under the authority of the Public Service Commission. For decades now, the Commission has been delegating extensive staffing authority to deputy ministers. Under the new staffing regime introduced in 2003, and which came into force at the end of 2005, a third or hybrid option has been adopted, namely the commission retains the authority to staff but is fully expected to delegate this authority to deputy ministers, who, in turn, delegate to their managers. The commission then holds deputy minister to account for the exercise of this authority by them and their managers. This exercise includes both establishing policies to govern their staffing systems that meet the spirit of the new Act and their actual practices and behaviours.
The risk of political influence
This new model of independent staffing constitutes an explicit effort to construct a regime that balances the imperatives of efficient management, as defined by the new public management, and the risks of political influence in staffing, as increased by the new public governance. The imperatives of efficient management require that staffing be undertaken as an executive, or management, function as far down the hierarchy as required by the operational character of each department (which means that it could vary by departments). This inevitably means that, for all but the most senior departmental positions, staffing authority must be exercised below the level of the deputy minister.
The judgment made in the recent Canadian reforms was that the risks of political influence by ministers (or their political staff) require that staffing authority not be assigned by statute directly to deputy ministers. If it were so assigned, it was concluded, deputy ministers – appointed and deployed at the pleasure of the prime minister – would be exposed to risk of political influence with no institutional protection, especially in regard to their personal staffing decisions for the senior departmental posts immediately below them, including assistant deputy ministers.
The logic here is that staffing at the most senior executive levels invariably entails a good deal of discretion in the comparative assessment of candidates. At this level of management, the criteria are primarily, if not exclusively, qualitative and non-technical. If deputy ministers have the final say on these appointments, they rebuff any attempt at political influence at the personal risk of being seen to be lacking in responsiveness to ministers, especially where the politically preferred candidate can be deemed qualified and a deputy’s willingness to surrender to political pressure would not be subject to any external review. Assigning the authority to staff to the Public Service Commission and having the commission then delegate this authority to deputy ministers provides deputy ministers, and those managers to whom they delegate, with protection against political pressure.
The protection lies in the fact that the deputy can use the possibility of an investigation by the commission and of a report to Parliament to warn off any attempts at political pressure. And, an investigation by the commission, unlike a mere ‘audit’, even an external audit by the Auditor General, can conclude with the commission withdrawing the deputy’s delegated authority, attaching conditions to its exercise, or rescinding an appointment that was found to be subject to political influence. The commission does not merely recommend a course of action to ministers, with which Parliament may or may not concur. The commission itself, unlike all auditors or review bodies, has the power to decide on what it has found to be the case and then to act on its own.
The risk of bureaucratic patronage
The new regime also addresses the need for a second form of protection, namely against what is commonly referred to as ‘bureaucratic patronage’, or favouritism of any kind on the part of public-service managers in exercising their delegated staffing authority. The traditional protection against this abuse was meant to be secured by having the commission itself do the staffing independently of the departments. Once most of the internal staffing was delegated to deputy ministers and then to their departmental managers, as occurred over the past two decades, the commission was required to establish an audit capacity to check on the compliance of departments with policies that were meant to protect against bureaucratic patronage or favouritism. But since the president of the commission participated as a member of the deputy minister community and was regarded as a colleague by the other members of the deputy minister cadre, the independence necessary to be, or be perceived to be, a protection against this form of abuse of authority by deputy ministers or their subordinates – for whom deputies remained responsible – was questionable at best. The paucity of the commission’s audit capacity was merely one indicator that the commission viewed itself as a partner to departments rather than an auditor of them.
The retention of the commission’s staffing authority, even with the explicit norm of delegation, provides a protection in this regard that would not be as easily secured if the commission merely audited the use of staffing authority that was assigned by statute directly to deputy ministers. Nonetheless, there was an expectation, in many quarters, that the new staffing regime would transform the commission into merely an audit agency of Parliament, and many regarded this as the ideal structure. For the most part, it is the model that was ushered in by new public management elsewhere in the Westminster systems.8 The fact that this model was not adopted in Canada constitutes an acknowledgement that the public accountability regime, as it applies to the staffing function, is not one that fits well with ministerial responsibility as it applies to departmental administration.
Authority trumps audit
Although ministers are responsible and accountable to Parliament for their administration of public affairs, including the actions of their departments and its officials, a minister’s accountability for her or his deputy minister’s actions, or her or his subordinates, in respect to public-service staffing is limited (Aucoin and Jarvis 2005). It is limited, of course, by the fact that the minister does not possess authority over staffing; the commission has this authority. But, if the deputy minister were directly assigned the authority by statute, and he or she was found by the commission to have abused this authority, or if this authority had been abused by a departmental manager for whom the deputy is responsible and accountable, the minister would still be limited in the corrective actions that he or she could take. In this instance, the actions a minister could take would essentially mean approaching the prime minister (or the Clerk) who could act to discipline, redeploy or even dismiss the deputy. These would be extreme measures. They would seldom be taken, and even then only in extreme circumstances where the abuse was indisputable and outrageous. Under this regime, of course, the commission could do nothing; it would have no authority. Its role would be restricted to audit.
Given the severe limitations of this model, a commission that was merely an audit agency would have much less capacity to protect against bureaucratic patronage or favouritism. And, abuses of this kind need to be addressed effectively because they have the potential to have long-term negative effects, not only on the competence and values of the public service but also on its morale. In contrast to an audit agency, a commission with executive authority over staffing can take several measures to encourage deputy ministers to fulfill their staffing responsibilities before extreme action need be contemplated.
The independence of the Public Service Commission
A commission with independent executive authority for staffing the public service needs to be independent not only of ministers but also of the public service. Its independence from ministers is reasonably straightforward. Ministers are excluded from the staffing process – period. Its independence from the public service is more complicated.
Perceptions and realities
The president and commission must work with the deputy ministers and the departmental managers who exercise delegated staffing authority. And, given that the commission, until the recent changes, had come to be viewed in many quarters as just another central agency, the challenge for the commission now is to demonstrate to the public service, the government, the public and the media, and Parliament that it is sufficiently independent so that there will be no compromising its willingness to hold deputy ministers and their departments fully to account and to take corrective action as required.9
The biggest challenge perhaps is removing the perception that the commission is part of “management” which, in turn, is part of “government”, and that its independence is thereby compromised. This perception was given empirical support by the degree to which, over the past three decades or so, the President’s post was treated as essentially a deputy minister post, and with those who occupied it potentially in the running for another senior public-service position at the discretion of the prime minister on the recommendation of the Clerk. Unlike the post of Auditor General, for example, there did not develop the expectation that the president would serve a single term (which was then a ten-year term) and then leave the public service, a practice that would add force to the assumption of independence.
Separate executive agency
It is the independence of the commission from the public service and government that is key to its design as an ‘executive agency’ that is not part of the ‘executive government’ (ministers and public service). The commission has the executive authority to staff and, when it delegates this authority to deputy ministers for the staffing of their departments, it retains the executive authority to take corrective action, including revoking appointments and imposing sanctions. But these executive powers do not make it part of the executive government; rather, it is an independent executive authority. It does not require the approval of ministers to act on those matters over which the commission itself has statutory authority. Nor can ministers revoke the commission’s decisions.
The commission is not accountable to a minister even though its annual report is presented to a minister for tabling in Parliament. The designated minister has no responsibility for the performance of the commission in carrying out its staffing mandate (except insofar as ministers have a general responsibility for the entire state apparatus that is governed by ordinary statutes). The president and the commissioners are appointed by the Governor in Council (with the appointment of the president requiring the approval of the Senate and House of Commons), hold office for seven-year year terms during good behaviour, but can be removed from office by the Governor in Council only on address of the Senate and House of Commons. The commission reports annually to Parliament through a minister, but it also can issue special reports directly to Parliament at any time it sees fit.
At the same time, the commission’s independence from the government is problematic insofar as the commission is funded in the same way as departments, that is, through the Estimates process that is managed internal to government by the Treasury Board. Moreover, it does not have separate employer status and thus is subject to the Treasury Board in respect to various aspects of the management of its own staff. As a consequence, the president, as “chief executive officer” of the commission, is accountable to the Treasury Board in the same manner as deputy ministers under the Financial Administration Act.
The traditional logic and rationale here is simple. According to this script, the commission needs to be independent to exercise its statutory authorities respecting staffing; it does not need to be independent with regard to the management of the commission’s financial or human resources. For these matters, accordingly, the commission should be managed as any other government organization using public resources and thus subject to corporate-government regulations and controls. This same logic applies generally, but not always, to quasi-judicial regulatory agencies and administrative tribunals. Commercial public enterprises, on the other hand, escape most, if not all, of the government’s corporate-management regime.
As argued below, the commission needs to given additional independence to achieve two objectives. First, as an agency that audits and investigates the executive-administrative branch of government, it must not be, nor be seen to be, subject to possible pressures by the executive-administrative branch from any leverage the latter might have as a result of its control over the allocation and use of the resources and capacities of the commission. This is a general principle of good governance. Comparisons to administrative tribunals and regulatory commissions do not apply here. These organizations are independent decision-making bodies, whose effectiveness, as decision makers, is not dependent on its organizational resources. The commission’s effectiveness, on the other hand, is necessarily dependent on its audit and investigative capacities; these are core functions for the delegated-authority model now in place. Second, the commission has a history. It is not a new organization in the architecture of Canadian government. For some time it has been perceived as a part of the central agency apparatus of executive government. The fact that there was considerable opposition to the proposed role for commission in regard to the recently adopted whistleblower protection legislation, on the grounds that the commission lacked sufficient independence from management or government, was telling in this regard. In order to alter this perception, every practical measure to enhance the independence of the commission needs to be used.
In part because the commission is meant to be independent of government it is often labeled a Parliamentary agency. The preamble to the Public Service Employment Act, 2003 states that the commission is “accountable to Parliament”, although what precisely this means is not spelt out. The commission is seen by many as a Parliamentary agency because it audits the staffing of the public service to assure Parliament that staffing is merit-based. It is a parliamentary “watchdog”. It audits “for” Parliament, of course, only because it delegates its authority to staff; otherwise it would simply account on its own performance in staffing the public service directly (including reporting on internal audits of its own performance).
But what constitutes a Parliamentary agency is subject to dispute. There is no one official definition, at least not one that serves the purpose of this discussion (Thomas 2003). In his analysis of “officers of Parliament”, Paul Thomas suggests that there are five “structural features [that] determine the independence/accountability relationships of the parliamentary agencies”:
In comparison with other parliamentary agencies on these criteria, the commission clearly belongs to the category of parliamentary agency. First, its mandate for staffing the public service makes it a decision-making authority independent of the government and accountable to Parliament. Second, the president and commissioners have fixed terms; the president is appointed only with the approval of the two houses of Parliament; and, the president and commissioners can only be removed with the approval of these two houses of Parliament. Third, its powers of audit and investigating are not subject to government or parliamentary approval; it has the full powers of an inquiry. Fourth, it reports to Parliament annually through a minister but also directly on any other matter it sees necessary at any time. Only in respect to annual funding and some aspects of human resource management, in other words, does it not possess the forms of independence that Thomas identifies with the ideal-type parliamentary agency. It is worth noting, of course, that its limitations in this respect are mostly shared by the other parliamentary agencies, although the Office of the Auditor General has significant independence from the Treasury Board to manage its human resources as a separate employer of its staff.
Enhancing the independence of the commission
The new Public Service Commission constitutes an advance over the previous regime in several important respects, not excluding the fact that there is now a better division of labour between the commission and management, as represented by the Treasury Board and deputy ministers and their departments. The commission’s mandate to ensure that Canada is served by a non-partisan, professional public service is sharper and more clearly focused than it was prior to the 2003 changes.
The structure for human resources management is still complicated, of course. It entails, in addition to the commission, the Board, and deputy ministers, the two agencies of the Board – the Treasury Board Secretariat (TBS) that handles the Board’s responsibilities as employer (compensation, collective bargaining, pensions and benefits) and the Public Service Human Resources Management Agency Canada (PSHRMAC) that assumes the rest of its human resources responsibilities (including leadership development, official languages, employment equity, human resources planning, classification, and values and ethics); the Public Service Staffing Tribunal with its responsibilities to hear and decide on complaints about internal staffing processes and decisions with the power to revoke appointments or order corrective action; the Canada School of Public Service; and, the Clerk’s responsibilities for senior executive public-service appointments. With the possible exception of the two separate agencies that divide the Board’s human resources management responsibilities, however, all the other elements make eminent sense. The School, to be credible as a public-service learning and research institution, needs to be separate. The Clerk’s responsibilities for executive appointments need to be separate as well, because the power to staff here is with Governor in Council on recommendation by the prime minister and this power of the head of the political executive should not be confused with the commission’s powers to staff the non-partisan, professional public service. And, the structural design of the relationship between the commission and deputy ministers, while complicated in one sense, has a sound public administration rationale, as previously discussed.
The commission is also well served by the decision of the new president to distance the commission from management as represented by the corporate structures of the deputy minister community. The president and commission must work with management, given the division of labour between the commission and several parts of the public service. But it is crucial that this interaction be, and be seen to be, collaboration between an independent agency and the public service. The president must not be viewed as a member of the deputy minister “team”.
Although the test of the commission’s independence will be its willingness to make decisions that are viewed by others as demonstrating its independence, a number of other things would also help.
The new appointment process for the president constitutes a major advance. It should be extended to the appointment of the other commissioners. The term of the president should be re-set at 10 years, without the possibility of reappointment. Even with the required approval of the two houses of Parliament, the independence of the president would be enhanced by the removal of the possibility of reappointment. In the same spirit, there should be a prohibition against any other public service appointment at the end of the president’s term.
The commission’s authority over its staff resources and the management of its own staff should clearly be changed. The commission is now subject to the Treasury Board (encompassing the roles of both the TBS and PSHRMAC), given its various authorities over almost all aspects of human resource management, except, of course, for the authority to staff that is vested in the commission. This division of labour for human resources management between the Treasury Board and the commission constitutes a good case of checks and balances for the purposes of securing the several values of human resources management in the public service. However, the Board’s continuing authority to control critical aspects of the commission’s capacity to perform its functions is extremely problematic. The commission has the responsibility to assess and evaluate the performance of public-service managers in staffing the public service. The Board’s existing powers over the way in which the commission is organized internally to perform these watchdog or oversight functions, as well as the classification of commission staff who carry out these tasks, constitute an unjustified risk to the effective independence of the commission. The status of the commission needs to be changed so that the commission itself has the management authority to decide on these critical matters.
Finally, the independence of the commission would be enhanced if there was a dedicated parliamentary committee to which it reported. Given the subject matter, the ideal would be a joint House and Senate committee. Among other things, the Senate has a greater ability than the House to conduct its work in a non-partisan manner, an obvious advantage in dealing with issues of a non-partisan, professional public service. And, it has a greater number of former ministers who have had experience in working directly with public servants on matters of administration. Such a committee might also be used, in place of the Governor in Council, as the body to recommend to the House and Senate candidates for the positions of president and commissioners. And, this committee could be the mechanism for recommending the level of funding for the commission in the annual Estimates process. Both of these measures would enhance the idea of the commission as a parliamentary agency.
Peter Aucoin is Professor Eric Dennis Memorial Professor of Political Science and Professor of Public Administration at Dalhousie University. In 2005, he received the Vanier Medal from the Institute of Public Administration of Canada.
1 Only the Australian government maintained an explicit emphasis on the ‘effectiveness’ of programs in achieving desired ‘effects’ (results or outcomes); in all other regimes, economy and efficiency dominated as part of expenditure restraint.
2 Australians also worry about the American influence on public governance and management, although, at least until recently perhaps, the American influence had greater legitimacy in Australia, especially in conservative circles.
3 A large expansion in the number of political appointees was made possible by legislative changes during the administration of President Jimmy Carter, thus exacerbating the challenge of finding competent outsiders.
4 Anecdotal evidence from the Westminster systems also suggests that most, if not all, of the notable exceptions had some prior public service or broader public sector experience.
5 However, for what it is worth, a good deal of anecdotal evidence suggests that successful public-service executives make successful private sector executives in large complex enterprises.
6 The American system, of course, does not accept this proposition, except insofar as an Administration claims that all its political appointees possess the competence for the positions to which they are appointed.
7 The Canada Customs and Revenue Agency was created when the prospect of public-service-wide reform was low. This agency and two others (Parks Canada and the Canada Food And Inspection Agency) were thus created as “service agencies”, essentially a new departmental form, given that they are under the same authority of their minister as a department but have separate management authority in respect to staffing and some aspects of human resource management.
8 There may even be some continuing confusion in various quarters that this is what actually happened in the Canadian reforms given the rhetoric about departments taking over the staffing function and being audited by the commission.
9 The commission is not alone in facing this challenge of working with management and auditing it for accountability purposes. The Auditor General also faces this challenge, given the significant extent to which it seeks to advance ‘best practice’ in management. See Saint-Martin (2004).
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