Constitutional Convention of a Politically Neutral Civil Service
Lorne Sossin (reference below, p. 7) describes Canada’s constitutional convention of a politically neutral civil service in terms of the six principles articulated by Kenneth Kernaghan (reference below):
- Politics and policy are separated from administration; thus, politicians make policy decisions and public servants execute these decisions.
- Public servants are appointed and promoted on the basis of merit rather than of party affiliation or contributions.
- Public servants do not engage in partisan political activities.
- Public servants do not express publicly their personal views on government policies or administration.
- Public servants provide forthright and objective advice to their political masters in private and in confidence; in return, political executives protect the anonymity of public servants by publicly accepting responsibility for departmental decisions.
- Public servants execute policy decisions loyally, irrespective of the philosophy and programs of the party in power and regardless of their personal opinions; as a result, public servants enjoy security of tenure during good behaviour and satisfactory performance.
Sossin writes (p 7-8):
“This catalogue, in effect, constitutionalizes the essence of Weberian bureaucracy: a vision of public administration rooted in impartiality and detachment but also closely associated with hierarchy, supervision, control, and secrecy.’ It amounts to an ‘ideal-type’ of apolitical bureaucracy, one that, Kernaghan is quick to point out, has never really existed in practice. In many governmental settings, bureaucrats are deeply enmeshed in politics, in the sense of developing and influencing policy preferences; shaping legislative, regulatory, and policy instruments; and defining outcomes through the exercise of discretion and control over implementation. By the same token, political staff in the employ of ministers may be deeply enmeshed in bureaucratic decision making around policy formation and issues management. As a former senior Ontario bureaucrat once opined, the idea that you can keep the political and bureaucratic roles distinct at the highest levels of government decision-making is ‘naïve and non-productive.’ It is because of this commingling of the bureaucratic and the political that the constitutional principles that demarcate the appropriate spheres of bureaucratic and political activity become both so daunting and so crucial. The interdependence of the bureaucratic and political domains of the executive can be threatened in two ways: first, when the political executive seeks to politicize the civil service for its own advantage; and, second, when civil servants act for partisan ends. It is in response to such threats that the courts, elaborating upon the convention of political neutrality, have played a central role.”
Sossin notes that “the Supreme Court appeared to recognize the aspirational quality of political neutrality as a convention rather than its empirical foundation in political practices of the time” (p. 11) and concludes (p. 11-12):
“In other words, history has a vote in but not a veto over the scope of constitutional conventions; ultimately it falls to judges, not historians, to determine their reach. While courts may determine the requirements of such conventions, they cannot order either the executive or the legislative branch to comply with them. Moreover, the fate of conventions lies just as much in the hands of governments, which, by their actions, can shore up or undermine the existence of a particular convention. In this sense, conventions may be justiciable and unenforceable – while part of the Constitution, a convention does not amount to a ‘constitutional guarantee.’ Nonetheless, the importance of conventions has been enhanced by the growing significance of unwritten constitutional principles more generally and the strengthening of the role of the Court as a catalyst for constitutional evolution through the exposition of such principles.”
Sossin writes (p. 8), citing Geoffrey Marshall (reference below):
“The constitutional convention of a politically neutral civil service is part of what is sometimes referred to in the public administration literature as the ‘iron triangle’ of conventions consisting of political neutrality, ministerial responsibility, and public service anonymity.’ The fact that these duties are not part of the written constitution does not detract from their centrality to Canada’s constitutional system.”
Atlas topic, subject, and course
Lorne Sossin (2005), “Speaking Truth to Power? The Search for Bureaucratic Independence in Canada.” University of Toronto Law Journal 55(1): 1-59. Sossin’s reference for the Kernaghan list is:
Kenneth Kernaghan, The Future Role of a Professional Non Partisan Public Service in Ontario (Panel on the Role of Government, Research Paper Series No. 13, 2003) note note 9 at 11; and Kenneth Kernaghan, ‘East Block and Westminster: Conventions, Values, and Public Service’ in Christopher Dunn, ed., The Oxford Handbook of Canadian Public Administration (Toronto: Oxford University Press, 2002) 104 at 106. See also Kenneth Kernaghan, ‘Political Rights and Political Neutrality: Finding the Balance Point’ (1986) 29 Can. Pub. Adm. 639. It was accepted as part of the expert testimony in Osborne v. Canada (Treasury Board),  2 S.C.R. 69, among other cases.
Sossin’s references in the p. 7-8 quote above are:
“See mostly Max Weber, The Theory of Social and Economic Organization (New York: Oxford University Press, 1947). This conception of bureaucracy as completely divorced from politics was popularized in North America by then political scientist Woodrow Wilson in ‘The Study of Public Administration’ (1887) 2:2 Pol.Sci.Q. 197. Weber’s influence, and its somewhat awkward fit with Westminster democracy, is discussed in Donald Savoie, Thatcher, Reagan, Mulroney: In Search of a New Bureaucracy (Toronto: University of Toronto Press, 1994) at 20-7 [In Search of a New Bureaucracy].
“Kernaghan, Future Role, supra note 9 at 10. The politics/administration dichotomy is sometimes expressed as a policy/operational divide in which developing policy is considered a political matter and implementing it a bureaucratic matter.
“Edward Stewart, Cabinet Government in Ontario: A View from the Inside (Halifax: IRPP, 1989) at 49, quoted in Kernaghan, ibid. at 12-3. See also Christopher Dunn, ‘The Central Executive in Canadian Government: Searching for the Holy Grail’ in Christopher Dunn, ed., The Oxford Handbook of Canadian Public Administration(Toronto: Oxford University Press, 2002) 305.”
Sossin’s references in the p. 11-12 quote above are:
“This distinction was established by the Supreme Court in Reference re Amendment of the Constitution of Canada (1981), 125 D.L.R. (3d) 1 at 84-5. For discussion, see Eugene Forsey, ‘The Courts and the Conventions of the Constitution’ (1984) 33 U.N.B.L.J. 1; Heard, Constitutional Conventions, supra note 19 at 1-15; and Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Toronto: Carswell, 1999) at 172-7. In Osborne, discussed below, the Court stated, ‘Therefore, while conventions form part of the Constitution of this country in the broader political sense, i.e. the democratic principles underlying our political system and the elements which constitute the relationships between the various levels and organs of government, they are not enforceable in a court of law unless they are incorporated into legislation. Furthermore, statutes embodying constitutional conventions do not automatically become entrenched to become part of the constitutional law, but retain their status as ordinary statutes. If that were not the case, any legislation which may be said to embrace a constitutional convention would have the effect of an amendment to the Constitution … , (supra note 12 at 87).
“For discussion, see Grant v. Canada (A.G.),  1 F.C. 158 (T.D.).
“For the most prominent example of this phenomenon, see the Secession Reference,  2 S.C.R. 217. For discussion, see Jean Leclair, ‘Canada’s Unfathomable Unwritten Constitutional Principles’ (2002) 27 Queen’s L.J. 389 at 407. Leclair, like most observers, does not expressly distinguish between constitutional conventions and the broader category of underlying constitutional principles. Those who favour greater judicial involvement in enforcing these principles point to the Court’s reference in the Secession Reference to constitutional principles giving rise to ‘substantive legal obligations.’ See also Mark D. Walters, ‘The Common Law Constitution in Canada: Return of Lex non Scriptaas Fundamental Law’ (2001) 51 U.T.L.J. 91; W. Newman, ‘Grand Entrance Hall, Back Door or Foundation Stone? The Role of Constitutional Principles in Construing and Applying the Constitution of Canada’ (2001) 14 S.Ct.L.Rev. (2d) 197;J Cameron, ‘The Written Word and the Constitution’s “Vital Unstated Assumptions”‘ in Essays in Honour of Gerald A. Beaudoin (forthcoming).”
Geoffrey Marshall (1984), Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford: Oxford University Press) at 210.
Page created by: Ian Clark, last modified on 27 August 2016.