“Bureaucracy is … a threat to, but also indispensable for, democracy.”

Eva Etzioni-Halevi

Introduction

In Westminster-based systems like ours, a professional public service exists that is independent and neutral as well as loyal to the government of the day (i.e., carrying out ‘its’ orders within the laws of the land and Parliament). This is part of the formal way that citizens, who have placed trust in elected and un-elected public office holders, control the exercise of power of these officials. Primacy though always belongs to democracy. The ‘direct’ tug of war takes place at the political-bureaucratic interface, where friction between the government of the day and the senior bureaucracy exists, in effect, by design. This means that for the senior bureaucracy, disloyalty to the government of the day constitutes a fundamental breach of trust with Canadians.

There has always been friction at that interface, together with varying degrees of suspicion and mistrust. The relative strength of the two key players in this tug of war (the government of the day and the senior bureaucracy) has shifted over time in response to the complex interaction of internal and external pressures. Internal pressures have varied depending upon things like the scope of the senior bureaucracy’s terrain of action; the general alignment of the two player’s beliefs about the role of the government and of the federal government within it; and the degree of mutual respect and trust that exists between them. And external pressures have been based, among other things, on beliefs about the role of elites in society, as well as the degree of moral relativism and civility in common use (and their expression inside).

Increasing signs of difficulty

By the end of 1990, these external pressures had finally begun to really ‘bite’ in the federal government.

Worldwide changes increased pressure on the political-bureaucratic interface. The wide dispersion of knowledge, power and resources around the world forced adjustments in the role of the state, and the blurring of sectoral boundaries led inexorably to shifting relations, resulting in what we see today as networks “rather than a smaller number of actors with better defined, more stable and predictable roles which exist within government” (Thomas 2008: 22).

Recently, Paul Thomas has described things this way: “Government has become increasingly centralized, vertical and personalized through the focus on the person and the office of the prime minister. The governing process is also increasingly technocratic and manipulative through the use of political technologies like polls, focus groups and sophisticated communications strategies used to define problems, shape public perceptions and manage agendas.” (Ibid). The decades up to the present day have also seen the rise of moral relativism as well as a sharp decline in civility.

Over this same period, ‘traditional guardian’ behaviour of public office holders (including some senior bureaucrats) began to change noticeably.

First came the Al Mashat affair in 1991, in which politicians blamed the senior bureaucracy while the key senior public servant fingered denied he had done anything wrong and refused to apologize despite reported pressure from the Privy Council Office. The testimony of senior bureaucrats to Parliament is interesting: Arthur Kroeger’s is classic (taking blame for not informing his minister – the one responsible for immigration), while the Clerk of the day refused to agree that politicians have unfairly blamed bureaucrats and angrily defended the government of the day.

Then came the 1994 Program Review which was certainly necessary (and recognized as such by senior bureaucrats, among many others), but broke the long-standing moral contract with the public service that included jobs ‘for life’ and very good pensions in return for good and faithful service.

The circling of the deputy ministerial wagons began during this period (Hubbard 2009a) as part of the fierce resistance of the ‘DM tribe’ – of which I was a part until 2000 – to the attack on the shared belief system that had been handed down to it from the mandarin era: that senior bureaucrats are partners of the government of the day, in reflecting upon and helping to decide how to act in the best interests of Canadians.

As the big “G” government to small “g” governance drift continued, it became clear that this was no small external change in advanced democracies. A great deal of trial and error began (public sector/service reform) especially as regards public management (Kaul 2000)) and it continues today. As Gilles Paquet has put it: “there is no satisfactory theory of governance providing a guide … [g]overnance and geo-governance remain a series of challenges that have elicited only imperfect responses” (Paquet 2005: 301).

One important aspect of the federal government’s response has been a realization that the ‘traditional’ ways of controlling the exercise of power no longer seemed to be up to the task. The solutions have often represented a significant turning towards hard measures to exercise that control – a focus on preventing misdeeds – and away from soft ones that experts like Paul Thomas say may be more effective in critical times (Thomas 2008, 2009). The result has contributed to a worsening of the challenges at the political-bureaucratic interface.

It is perhaps not surprising then that with the election of the Conservative Party after more than twenty years, the return of natural mistrust and lack of respect after long rule by ‘the other guys’ was not as quickly dissipated as before. There was admittedly little alignment of players with respect to role of federal government prior to the election, however, this realignment had been achieved more quickly with Brian Mulroney’s governments.

In my view, the unintended negative consequence of emphasizing hard measures has played into the hands of DM tribe resistance (and its acolytes), while also stoking the fires of ‘disloyalty’.

Loyalty and disloyalty

Loyalty is most often associated with the honouring of a moral contract, while ‘disloyalty’ amounts to a breach of trust (and requires a rich enough setting for normative expectations to exist) (Paquet 2010). It is true that senior bureaucrats must pay attention to many moral contracts (e.g. with subordinates, the clients they serve etc.), nevertheless, two that are their very raison d’être are with the government of the day and with citizens (to ensure they serve the government of the day within the laws of the Land and Parliament). Their formal burden of office sits at the nexus of these moral contracts.

Seen this way, as mentioned earlier, senior bureaucratic ‘disloyalty’ to the government of the day is a breach of trust with Canadians at the most fundamental level.

Disloyalty can be active (e.g., taking advantage of a minister’s trust and putting words in the mouth of an unsuspecting minister that are contrary to the government’s view (Paquet 2010)) or deliberately passive, either knowingly linked to disloyalty (e.g., not warning clearly of the downsides of a contemplated ministerial action) or not.¹

But as Christopher Wilson reminds us, moral contracts are almost always contingent in nature – in other words characterized by the words ‘I will, if you will’ (Wilson 2007). The moral contracts between the government of the day and citizens, and its senior bureaucracy are no exception.

In terms of the quid pro quo in this case, the original versions of the moral contract were, in effect, loyalty to the government of the day (within the laws of the land and Parliament) in return for a high degree of permanency, good salaries and very good pensions, anonymity, as well as the recognition and the respect of other key players (i.e., the government of the day, parliamentary officials, other societal elites and citizens generally) with respect to their status as senior bureaucrats. Today’s version is somewhat different (Paquet and Pigeon 2000).

Loyalty has been described as something that “make[s] fear and risk tolerable, and disappointment endurable” (Jacobs 1994: 68). It can be seen in extreme form in police forces and the military, and it exists to some degree all around. For the senior bureaucrat it is tantamount to “forfeiting freedom to associate with whomever one pleases, freedom to air personal opinions if they conflict with policy, and, often enough, freedom to speak the simple truth; also forfeiting easy and casual privacy except through the strategem of being incognito” (Ibid.: 92). Like other professional loyalties, it carries emotional as well as concrete costs.²

Furthermore in the case of the public service, loyalty has been described as something that requires ‘inculcation and watchfulness’ as well as being a two-edged sword that is capable of corrupting. (Ibid: ch 5).³ I have noticed a gradual weakening taking place of the effectiveness of inculcation and watchfulness of loyalty to the government of the day over the last decade or more.

The result is that I do not find it all that surprising that there has been a worrying increase in ‘disloyalty’ to the government of the day by some senior bureaucrats (Hubbard and Paquet 2010: ch 3) as well as a strengthening of the narrower loyalty to the tribe’s shared belief system.

Beware the Trojan horse

The most dangerous consequence of this in my opinion is the encouragement (or at least not the active discouragement) of the notion that, somehow, the public service has a ‘better’ view of the public interest than the elected government of the day – ‘better’ and not just different (i.e., requiring airing and then reconciliation at that political bureaucratic interface as part of the on-going tug of war).

Were this view to be translated into action, the tug of war would be altered so that fundamental primacy would shift towards technocracy. Such a notion is deeply anti-democratic and ought to provoke great concern.

This kind of idea reappears from time to time and now seems poised to gain strength. A recent newspaper article for example, that quotes a respected former head of Treasury Board’s Office of Values and Ethics and 2006 Vanier Medal winner Ralph Heintzman extensively provides a good demonstration (“PS, government needs a moral contract: New rules essential to stop a partisan exploitation of the bureaucracy, expert says” (May 2011: A1)). On the surface, it seems to have pointed out a worrying concern and then made suggestions of possible actions to lessen the damage.

The article’s subtitle certainly makes the concern clear “[n]ew rules essential to stop partisan exploitation of the bureaucracy, expert says” (Ibid.). And its first sentence sums up what is felt to be needed: “Canada needs to set ground rules for a new ‘moral contract’ between ministers, public servants and Parliament because the existing rules are too weak to stop the partisan exploitation of the bureaucracy, says a former senior bureaucrat who helped to write some of those rules” (Ibid.).

In my opinion, however, it employs a kind of (possibly unintentional) bait and shift technique to lure the reader into thinking that what is at stake is only finding ways to prevent misdeeds by today’s government of the day. Implying that anything done by the government of the day that ‘hits the political radar’ by definition amounts to ‘undue political influence’ in which public servants have necessarily been inappropriately directed or pressured. In other words that ‘disloyalty’ by the senior bureaucracy is highly unlikely, impossible or irrelevant.

Let me hasten to add that I am not making an ideological argument here; I would say the same thing if the government of the day were led by a different political party than is the case today.

While it is true that the government of the day may have more opportunity and be under more pressure in today’s environment of perpetual campaigning to have its political direction, in effect, slide towards undue political influence, great care must be taken not to imply that most or all political direction is undue nor to propose actions that will tilt the tug of war against democracy. In fact, what could be a lack of awareness or understanding inside and outside the public service of the existence and importance of our built-in tug of war may mean that what is, in fact, ‘disloyalty’ may be being used in some instances to oppose the government’s legitimate right to provide appropriate political direction and exercise political influence via communication channels.⁴

The use of undue political influence via communication channels may well need to be dampened down. But while I have great respect for my former colleague, Ralph Heintzman’s commitment and personal integrity, his very recent suggestions are underpinned by a belief that can be interpreted as incorporating an anti-democratic bias. In 2010, he said publicly that: “the public service duty of loyalty, properly defined, must be a higher or broader duty of loyalty than simply the normal democratic duty of loyalty, even when governments or superiors are acting within law and the Constitution” (italics added for emphasis, Heintzman 2010: 50).

This would amount to a breathtaking arrogance on the part of the un-elected and it flies in the face of the very notion of an advanced democracy. It may explain why his views as expressed in that article come across as being so one-sided (i.e., the government of the day (or at least this one) and its political bureaucrats all wear black hats and senior bureaucrats necessarily wear white ones). In effect, he may want to tilt the tug of war to favour technocracy and redefine the moral contract with citizens as a result. To me, his seemingly innocuous and sensible-sounding suggestions could amount to a Trojan horse that would damage our formal system’s democratic underpinning.

Conclusion

Good behaviour cannot be legislated, nor can behaviour be altered significantly on either side of the political-bureaucratic interface while continuing to reinforce mistrust and suspicion and increasing fear there. We do not want to lessen the necessary friction; it is essential to effective and efficient results for Canadians. We do not require that all the key players like each other, but we have a right to demand and expect civility – the civility that makes reconciling the necessarily different perspectives of the key players about ‘the public interest’ somewhat easier and likely better at the end of the day for citizens – for whom players both work.

What are needed, in my view, are moral contracts for both the senior bureaucrats and the politicians, accompanied by incentives and sanctions that tend to support the behaviour we citizens want and discourage the behaviour we deplore.

A much better approach than Heintzman’s could be to consider following the UK’s example of actions taken when it was confronted with similar problems. There, a formal (and public) code was put in place that is enforced by the Prime Minister and the independent Civil Service Commission “(i) requiring ministers to respect the impartiality of the public service, and to give fair weight to their advice and (ii) requiring the civil service to set out the facts and relevant issues truthfully, and to correct any errors as soon as possible and not knowingly mislead ministers, Parliament or others” (Paquet 2010: 31).

We simply cannot and must not allow the important concept of ‘moral contract’ as an important instrument of modern governance to be deformed and turned into a safety belt for one of the two players. The tilting of the tug of war towards technocracy and away from democracy that would result must be publicly deplored and rejected.

Ruth Hubbard, former long-time Canadian federal deputy minister, is Senior Fellow at the Centre on Governance, University of Ottawa and senior partner in Invenire (www.invenire.ca).

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¹  If a senior bureaucrat fails to use enough imagination to find common ground or to enable a good discussion of what is at stake so that the two different perspectives can be reconciled more effectively in the public interest and instead decides to pluck up courage and ‘speak truth to power’, the result may not be serving the public interest as well as possible (Hubbard 2009b). This can be regarded as a kind of disloyalty as well. Or at least a failure to carry out the burden of the office as well as could be expected.

²  An idea of the cost in one case can be seen in Hubbard 2009a.

³  I strongly disagree with Jacobs’ assertion that mixing public and private moral syndromes can only produce ‘monstrous hybrids’ nevertheless, based on my experience, I agree that loyalty (a guardian virtue) is a two-edged sword that “cannot be relied upon without continued inculcation and watchfulness” (Jacobs 1994: 69).

⁴  In my admittedly non-systematic dealings with senior bureaucrats that continue to the present day, I have been amazed at what seems a very common lack of awareness of many about notions such as the ‘burden of office’ they carry and, as a result, of what they are supposed to be safeguarding (and why it matters) as well as of why ‘disloyalty’ to the government of the day (whichever party plays that role) is fundamentally important. I was also told a story about the members of one department’s external audit committee who were all surprised that ‘democratic values’ were considered to be the most important. They were not opposed to the idea – it had simply never occurred to any of them.

REFERENCES

Heintzman, R. 2010 “Loyal to a Fault,” www.optimumonline.ca, 40 (1): 48-57.

Hubbard, R. 2009a. Profession: Public Servant. Ottawa: Invenire Books.

Hubbard, R. 2009b. “Truth to Power: A Matter of Imagination and Courage,” in Canadian Government Executive, 15 (1): 10-11.

Hubbard, R. and G. Paquet. 2010. The Black Hole of Public Administration. Ottawa: University of Ottawa Press, ch 3, p. 110-199.

Jacobs, J. 1994. Systems of Survival: A Dialogue on the Moral Foundations of Commerce and Politics. New York: Vintage Books, ch 7, p. 57-92.

Kaul, M. 2002. An Outsider’s Inside View: Management Reforms in Government. Jointly published by CAPAM and International Institutes of Administrative Sciences (IIAS).

May, Kathryn. 2011. “Government needs a moral contract,” Ottawa Citizen, December 12, A1.

Paquet, G. 2005 The New Geo-governance: A Baroque Approach. Ottawa: University of Ottawa Press.

Paquet. G. 2010. “Disloyalty,” www.optimumonline.ca, 40 (1): 23-47.

Paquet, G. and L. Pigeon. 2000. “In Search of a New Covenant,” in Government Restructuring and the Future of Career Public Service in Canada, E. Lindquist, (ed.), Toronto: Institute of Public Administration of Canada, p. 475-498.

Thomas, P. 2008. “Political-Administrative Interface in Canada’s Public Sector,” www.optimumonline.ca, 38 (2): 21-26.

Thomas, P. 2009. “When the Machinery of Government Breaks Down,” www.optimumonline.ca, 39 (4): 43-47.

Wilson, C. 2007. “Facilitating Contingent Cooperation.” www.optimumonline.ca, 37 (1): 27-34.