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What Would the Incise Index Say About Canada Now?

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What Would the Incise Index Say About Canada Now? Optimumonline.ca vol. 49, no. 1 (spring 2019) Integrity as a Required Element of Civil Service Effectiveness – What would the InCiSE Index Say About Canada Now? Ian Peach The International Civil Service Effectiveness (InCiSE) Index is a project of the Blavatnik School of Government and the Institute for Government in the United Kingdom.1 It was designed to analyse the effectiveness of participating countries’ central government civil services because, as the partners explain, “An effective civil service plays an important role in driving forward a country’s progress and prosperity. An ineffective one can act as a brake on these things.”2 The analysis is based on both the “core functions” of governments (the “what” of governing), with the effectiveness of governments in delivering 11 core functions analysed, and the “attributes” of government (the “how” of governing), with six key attributes of good government, which affect the quality of the delivery of core functions, analysed.3 As it is described in the 2017 InCiSE report, “Every civil service has an underlying set of behavioural characteristics or traits which are important drivers of how effectively core functions are delivered, for example levels of openness, integrity and inclusiveness. … Cultivating and displaying these attributes is commonly … understood to be good practice. They are also key determinants of an organisation’s overall effectiveness.”4 One of the six key attributes analysed was “integrity”, which was defined by six themes: corruption level perceptions; adherence to rules and procedures; work ethics; fairness and impartiality; striving to serve citizens and ministers; and processes in place to preserve integrity and prevent conflicts of interest.5 The first InCiSE Index, released in June 2017, ranked Canada’s federal public service as top overall; Canada was also rated fourth in the integrity index, after New Zealand, Sweden and Norway.6 Since then, however, serious questions about the independence and integrity of Canada’s federal public service have arisen. Much of 2019’s media reporting on the Canadian federal government so far has been occupied with the accusations that the Prime Minister, his senior political staff, and, most importantly for this analysis, the Clerk of the Privy Council, attempted to exercise political interference in prosecutorial decision making, contrary to the principle of prosecutorial independence. These efforts were designed to secure a Deferred Prosecution Agreement, a form of corporate “plea bargain”, for SNC-Lavalin, a major Quebec engineering and construction firm and a major donor to the Liberal Party of Canada, so that the 1 International Civil Service Effectiveness (InCiSE) Index, 2017 (London: Institute for Government, 2017), p. 4 2 Ibid. 3 Ibid., p. 8. 4 Ibid., p. 9. 5 Ibid., p. 21. 6 Ibid., p. 16, 21. 23 Optimumonline.ca vol. 49, no. 1 (spring 2019) corporation does not have to go through a trial on charges of corruption and fraud in relation to its efforts to secure contracts with the Government of Libya during the Gaddafi dictatorship.7 Questions about whether former Attorney General Jody Wilson-Raybould’s refusal to overturn the decision of the Director of Public Prosecutions not to grant SNC-Lavalin a Deferred Prosecution Agreement was the cause of her being shuffled out of the Attorney General and Minister of Justice portfolio have led to a number of commentaries about whether the functions of Minister of Justice and Attorney General, as chief law officer of the Crown, should be separated and whether the Attorney General should not be a member of Cabinet. Clerk of the Privy Council Michael Wernick’s behaviour in this situation, however, also raises an important issue about how best to protect the independence and professionalism, and therefore effectiveness, of Canada’s vaunted independent, professional public service. In Canada, the Clerk of the Privy Council is both the Deputy Minister to the Prime Minister and the head of the public service. As a public servant, the Clerk should be aware of the political context in which decisions are made, as an awareness of the political context will make his advice more thorough and complete. As a public servant, however, the Clerk needs to “speak truth to power,” in the best traditions of an independent, professional public service; he needs to keep his professional advice professional, to balance the political advice that his Minister will get from his political staff. As head of the public service, the Clerk also has to act in a way that protects the integrity and independence of the public service from the influence of political interests and sets an example for the entire public service of how an independent, professional public servant should behave. If, for example, the Clerk’s Minister, being the Prime Minister, wishes to exert political influence over a decision whether to prosecute a person, or corporation, that the Prime Minister has a relationship with, the Clerk’s role, as head of the public service, should be to caution the Prime Minister against doing so. It is important for the Clerk, as head of the public service, to act in this way because such political influence would be a breach of the constitutional principle of the rule of law, of which prosecutorial independence is a critical element, and because of the negative effect such political interference in a prosecutorial decision would have on the perception of the independence and integrity of the public service. If the Attorney General refused to intervene in the decision of the Director of Public Prosecutions to prosecute such a person or corporation and the Prime Minister complained to the Clerk about her refusal, the role of the Clerk, as head of the public service, should, at a minimum, be to inform his Minister that any political dispute with the Attorney General, as a member of his Cabinet, is not an issue for the public service; such a dispute should be resolved between the Prime Minister and the Attorney General themselves or, at least, among political staff. The Clerk could go further, as head of the independent, professional public service, and speak to his Minister of the constitutional importance of protecting the independence of prosecutors – independence that is even more important than the independence of public servants generally. By doing so, the Clerk would, in effect, be supporting the Attorney General in her refusal to intervene to reverse her Director of Public Prosecutions’ decision, but he would be 7 Mahem Abedi, “SNC-Lavalin affair explained: A look at remediation deals at the centre of the controversy,” Global News, March 6, 2019. Available at https://globalnews.ca/news/5022558/deferred-prosecution-agreements- snc-lavalin/. 24 Optimumonline.ca vol. 49, no. 1 (spring 201259) doing so from the perspective of the head of the public service, with responsibilities to protect its independence and integrity. What the Clerk, as head of the independent, professional public service, should not do, however, is convey the political pressure of the Prime Minister to the Attorney General, as Michael Wernick seems to have done in the case of SNC-Lavalin.8 Mr. Wernick seems to have been unable to balance his role as Deputy Minister to the Prime Minister with his role as head of the federal public service. His loyalty to the Prime Minister, as his Minister, would seem to have trumped his more important responsibility, as head of the public service, to protect the independence, integrity and, therefore, effectiveness of the federal public service. Mr. Wernick’s retirement may bring an end to concern about his particular confusion over the appropriate roles of political staff and public servants, but it will not solve the underlying problem of the politicization of public services in Canada. It is not just a problem that we see in the federal public service; indeed, the problem is more pronounced in some provinces, with Saskatchewan being one example. Back in February 2017, former Saskatchewan public servant, Rick August, wrote a lament about the politicization of the Saskatchewan public service, in an article in the Regina Leader-Post headlined “Saving Saskatchewan’s public service”. There, he declared that “The system is under attack.”9 He noted that senior public servants are expected to be politically neutral, providing ministers with the best possible advice without partisan bias, but that an increasing number of senior public service jobs in Saskatchewan were being filled by people with partisan political affiliations with the party in power in the province.10 August points out that “Political hiring and firing is, in simple terms, corruption – the diversion of public funds to benefit the governing party and its supporters.”11 Despite the fact that Saskatchewan established a Public Service Commission decades ago to prevent political interference in the appointment and dismissal of public servants, so that the Saskatchewan public service could remain an independent, professional public service appointed on the basis of merit alone, August describes as the “fatal weakness” of the system that those at the top of the government’s human resource system are appointed by Cabinet.12 To address this “fatal weakness,” August proposed that the head of the public service be appointed by the Legislature, rather than Cabinet; August’s thought was that the greater transparency in appointments by the Legislature would increase the accountability of the head of the public service for ethical management of the public service.13 This, in turn, would protect the professional integrity, and therefore effectiveness, of the public service, strengthening key attributes of an effective public service identified in the InCiSE Index. August may have been on to something important to ensure that the key attributes of an effective public service identified in the InCiSE Index are protected. 8 Amanda Connolly, “All of this screams’ of political interference: Wilson-Raybould to Wernick in SNC-Lavalin tape,” Global News, March 29, 2019.
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