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ARCHIVED - Review of the Responsibilities and Accountabilities of Ministers and Senior Officials - Meeting the Expectations of Canadians


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3.
The Ministry and the Accountability Regime

Introduction

This section describes the prime minister's role in the assignment of responsibility to the ministry, and the Privy Council Office's supportive role in the prime minister's leadership of the ministry. It focusses on the political-bureaucratic interface, outlining how ministers, along with their deputies, manage their departments. It provides an overview of the contemporary environment in which ministers and deputy ministers must manage their responsibilities. Finally, it indicates how the prime minister sanctions ministers and deputy ministers when he or she deems this warranted. This section makes it clear that:

  • collective responsibility is essential to unity of government;
  • a clear hierarchy of authority and well-established protocols for delegating responsibility and resolving disputes are required for managing the political-bureaucratic interface;
  • the conditions in which modern government operates pose challenges to the accountability regime; and
  • tools exist for the sanctioning of both ministers and deputy ministers in the event of poor management performance.

3.1 Role of the prime minister in the assignment of responsibility

The leader of the political party that appears able to form a government that will have the confidence of the House of Commons-normally the party with the largest number of seats-is asked by the governor general to form a government. This is the defining responsibility of the prime minister: to select the ministry and to organize the Cabinet both as a decision making body and as a mechanism for setting the broad direction of government policy and operations. Ministers are accountable to the prime minister, who is, in effect, the steward of the collective responsibility of the Cabinet. Deputy ministers are accountable to ministers and, through the clerk of the Privy Council, the prime minister. This dual accountability relationship reflects the important role that deputy ministers play in supporting the necessary checks and balances required between individual and collective responsibility.

In addition to responsibility for organizing the Cabinet, the prime minister has the prerogative to set policy and make recommendations to the Governor in Council concerning the organization, structure, and mandate of ministerial portfolios, consistent with legislation.

The prime minister also selects deputy ministers, on the advice of the clerk of the Privy Council. Deputy ministers are accountable to the prime minister through the clerk for upholding the duly approved policies of the government. This accountability underscores the collective interest of all ministers and the specific interest of the prime minister in the overall management of the Public Service.[18]

Role of the Privy Council Office in supporting the prime minister

The Privy Council Office is the prime minister's department. The clerk of the Privy Council, in addition to being secretary to the Cabinet and head of the Public Service, is the prime minister's deputy minister. Accordingly, the clerk, with the assistance of Privy Council Office staff, supports the work—and the accountability to Parliament—of the prime minister and is himself or herself accountable to the prime minister. In addition to this formal accountability, the clerk has a duty to serve the public interest and to ensure that the Public Service as a whole is a professional, non-partisan, and loyal public institution. He or she represents the Public Service to the prime minister and the government and, equally, the prime minister and the government to the Public Service. As secretary to the Cabinet and head of the Public Service, the clerk also has responsibilities beyond service to the government of the day. For example, he or she is responsible for continuity between governments and for the maintenance of the Cabinet papers system. The Privy Council Office plays an important role in reviewing and challenging the initiatives of departments in order to ensure quality and coherence with larger government objectives.

Deputy ministers are accountable to the prime minister through the clerk of the Privy Council for their support to their ministers in a way that is consistent with the agenda and direction of the government as a whole. The clerk also plays a key role in supporting deputy ministers in managing their multiple accountabilities.

3.2 Managing the political-bureaucratic interface

The ways in which ministers manage their departments vary according to circumstances and to the style of individual ministers. That said, Gordon Osbaldeston, a former clerk of the Privy Council, has outlined the main ways in which ministers direct their departments. These include the following:[19]

  • setting the "general direction" for priorities, both policy and administrative, and the "specific direction" in the department for key priorities;
  • reviewing and signing Cabinet documents, submissions to the Treasury Board, and changes to regulations that give effect to the direction they have given;
  • approving public announcements and correspondence;
  • following up with departmental officials, through the deputy minister, on specific issues identified by citizens, parliamentarians, and other ministers; and
  • communicating with other government players on all matters of importance affecting the department, Parliament, the public, and Cabinet.

Under the minister's direction, the deputy in turn guides the department and delegates further authority to meet expectations. The extent of ministerial involvement in the detailed work of the department will vary among ministers and across issues and situations, and ministers and their deputies must work together to understand the level of detail at which the minister expects to be involved. The minister and deputy need to ensure that appropriate systems are in place to manage the risk of problems and support the accountability of the minister.

In managing departmental policy and operations, ministers may either give proactive direction to officials or make decisions in response to proposals or other advice that officials bring before them. In either situation, the transmission of instructions from the minister to the Public Service is particularly important in maintaining the hierarchy of accountability upon which ministerial responsibility rests. Accordingly, the lines through which information, advice, and decisions are communicated must be clear and consistent. As a general practice, communications between the minister and his or her office, and departmental officials should be conducted through the deputy minister's office. Although circumstances will arise in which this is not practical or in which other approaches are appropriate, it will always be important for ministers and deputy ministers to ensure that appropriate controls are in place so that they receive the information they need to fulfil their respective responsibilities.

Minister's exempt staff

One area that merits specific mention is the appropriate role of the minister's office in communicating and transmitting instructions to the department. In Canada, political staff (also known as "exempt" staff), while partly occupied with parliamentary and constituency work, also play an important but limited role in the operation of the department.[20] Gordon Robertson, a former clerk of the Privy Council, described the role of the Prime Minister's Office, which can be extrapolated to all ministers' offices, as partisan, politically oriented, yet operationally sensitive.[21] The role of political staff is to provide strategic, partisan advice to the minister that complements the professional, expert, and non-partisan advice that comes from the deputy minister and the Public Service at large.

Exempt staff are not part of the executive. The exercise of executive power requires legal authorization. Ministers receive this largely through legislation. Public servants receive it generally by being appointed to a position under the Public Service Employment Act and the Financial Administration Act. Exempt staff are so called because they are exempt from these acts. Accordingly, exempt staff have no authority to give direction to public servants. However, because both exempt staff and public servants serve the minister with respect to his or her departmental responsibilities, the twosides must obviously co-ordinate their work in their respective spheres. Exempt staff may therefore attend meetings in common with public servants, when appropriate (for example, ministerial briefings), ask public servants for factual information, or transmit the minister's instructions. However, to the extent practicable, relations between exempt staff and public servants should be conducted through the deputy minister's office.[22] It should also be noted that the minister is accountable for anything done in his or her name by exempt staff.

Role of deputy ministers

Deputy ministers have a wide range of duties, including providing policy and operational advice to ministers, overseeing program delivery, and ensuring internal departmental management and interdepartmental co-ordination. They have both delegated and statutory authority to perform these duties. Their central duties are outlined in the relevant departmental acts. In the areas of "administration" designated in these acts, deputy ministers act almost entirely in the place of their respective ministers.[23] The authority and duty to act can be assigned to public servants, but accountability in the political or constitutional sense cannot. Deputy ministers are accountable for these actions on a day-to-day basis, primarily to their ministers and, through the clerk, to the prime minister—not to Parliament.[24] The statutory basis for this is the Interpretation Act, which, drawing on the departmental legislation, states that deputies may exercise the authority of their minister except to make regulation. This statutory interpretation makes explicit the legal accountability of deputies to their ministers, which is implicit in the departmental statutes.[25]

Deputies are also assigned specific authority directly or through the Treasury Board under certain provisions of key acts of public administration without reference to the minister. In these areas, deputy ministers are accountable not only to their ministers but also to the Treasury Board or to the Public Service Commission of Canada.[26] In practice, deputy ministers' accountability to the Treasury Board is often fulfilled through their interaction with the secretary of the Treasury Board, and by providing reports to and working with the Treasury Board of Canada Secretariat. As noted, ministers are responsible for ensuring that deputy ministers carry out these statutory obligations, and ministers need to ensure that adequate controls such as internal audit, financial systems, and human resources systems are in place to support the discharge of this responsibility.

Deputy ministers are the bridge between ministers and other public servants. An important aspect of this role is ensuring that the lines of communication are clear and consistent. Communications between the minister and his or her office and departmental officials should, to the extent practicable, be conducted through the deputy minister's office. In their conduct and advice to ministers, public servants are expected to adhere to the Values and Ethics Code for the Public Service,[27] and deputy ministers have a particular responsibility to show leadership in this regard.[28] Deputy ministers must also comply with the prime minister's Conflict of Interest and Post-Employment Code for Public Office Holders. Adherence to public service values means, among other things, that public service advice must always be mindful of the lawfulness and propriety of any initiative. Moreover, in the event of conflict between the minister's instructions and the law, the law must prevail.[29] By the same principle, public servants cannot reject a minister's lawful direction simply because they disagree with the minister. If a minister's directions in matters for which he or she is responsible are lawful, public servants, including deputy ministers, must obey them.

That said, there will occasionally be situations where disagreements arise between ministers and their deputies that are not readily resolvable simply in terms of legality. For example, the deputy minister could believe that a minister's desired course of action, though lawful, would be inconsistent with Treasury Board management standards of propriety or regularity and therefore run counter to broad government policy, or there could be disagreement over the economy, efficiency, or effectiveness of an administrative measure under the deputy minister's statutory responsibilities.

In the vast majority of cases, such disputes are worked out through discussions between the minister and the deputy. On matters of management policy, the deputy can seek the advice of the secretary of the Treasury Board, the comptroller general of Canada or the president of the Public Service Human Resources Management Agency of Canada. In a few cases, the dispute may be resolved with the help of the prime minister through the clerk of the Privy Council.[30] The clerk acts as an intermediary, as necessary, discussing the issues with ministers and deputies and seeking a resolution. If the deputy disagrees with the final outcome, he or she can resign rather than implement the minister's decision.

 3.3 The operating context of government

Over the past 50 years, the government has become much larger and more complex and the demands upon ministers and deputy ministers have increased proportionately. Like other organizations, the government is challenged to respond effectively to the emergence of a global economy, startling advances in information technology, social and demographic changes, and a difficult security environment. But the government faces these on an exceptional scale: it is the single largest organization in the country, with annual expenditures of approximately $200billion and over 200departments, agencies, and institutions that operate in every region of Canada and in over 100other countries. The federal public sector employs more than 450,000people, delivering over 1,600programs and services. Consequently, while every transaction can be important, ministers and senior officials find it a real challenge to remain fully informed about all matters for which they are accountable.

The structures within government are now more diverse and include traditional departments, special operating agencies, Crown corporations, regulatory agencies, and various hybrid organizational arrangements. Moreover, many of the core services have been outsourced to the private sector, changing the managerial control exerted by the Public Service and raising questions for parliamentary scrutiny. Many of these structures do not fit neatly within the traditional view of government that prevailed when the doctrine of ministerial responsibility took shape. In this respect, some commentators have argued that 18th-century concepts of accountability are clashing with 21st-century concepts of public service organizations and delivery of services.[31]

Changing values and expectations are also fuelling demands for reform. Traditional values of accountability, control, and consistency must be balanced against new demands for openness, transparency, innovation, and citizen-centred service. In some ways, these pressures have pulled the application of accountability in government in different directions and raised debate over the right balance between a rules-based approach and a principles-based approach to managerial accountability.

In this context, there is greater openness, horizontality, and complexity surrounding policy making and departmental operations. Major policy issues now require elaborate public and federal-provincial consultations. Program delivery often involves joint departmental delivery, electronic government, federal-provincial partnerships, public-private partnerships, and a role for the voluntary sector, all of which make decision making more open and complex. Public servants must maintain their formal accountability to ministers, to the Treasury Board, and to their own administrative hierarchy in the face of increased pressures from the more participatory approach to policy making and the horizontal approach to policy and program delivery. A clearly defined accountability system in such a complex environment is both more important and more difficult to achieve.

Citizens' demands and expectations for performance and accountability, however, are higher than ever before. Citizens, used to technology in all aspects of their lives, are appropriately demanding better services that are seamless and tailored to their needs, as well as more effective stewardship of resources, and greater involvement in decision making. Thanks to new technologies, such as the Internet, Canadians can be much better informed today about government operations and public policy issues. At times, this has led to calls for mechanisms of direct accountability to citizens (for example, recall), which run counter to the Westminster tradition.

Decision making and managerial authority have gradually been transferred from central agencies to individual departments. As the responsibility for the delivery of government services has been pushed down and out to the front lines, governments have found it increasingly difficult to get accountability and performance information up and into the departmental headquarters and into the central agencies that have responsibility for oversight. Effective accountability in the absence of comprehensive and timely management information poses a challenge. This has led to a significant increase in the administrative rules and policies that govern the use of authority, despite periodic efforts at streamlining.

3.4 The Role of the Prime Minister in Sanctioning Ministers and Deputy Ministers

In such a challenging environment, from time to time, mismanagement does occur in government, as it does in any large and complex organization. Parliament may inflict political embarrassment on individual ministers for poor performance. Beyond that, the prime minister can also take a number of steps along a continuum in sanctioning them. In all cases, the prime minister intervenes at his or her discretion. Typically, for less serious issues, the prime minister will speak to the minister and register his or her concerns either directly, in Cabinet, or through senior officials in the Prime Minister's Office or the clerk of the Privy Council. In the most severe cases, the prime minister could ask a minister to resign. These are political rather than legal means of disciplining ministers.

Because deputy ministers are appointed on the recommendation of the prime minister (usually with the advice of the clerk of the Privy Council), a minister who is not satisfied with the administration of his or her department by the deputy minister and who is unable to resolve matters directly with the deputy may bring these concerns to the clerk or, ultimately, to the prime minister.

Assessing the performance of deputy ministers and the consequences for performance is the responsibility of the clerk of the Privy Council as the chair of the Committee of Senior Officials (COSO).[32] Sanctions for poor administration may take various forms depending on the circumstances, including reprimand, stalling career progression, reduction of bonuses (the "at-risk" portion of salary) and, in extreme cases, dismissal or demotion. The clerk, in consultation with COSO, assesses the performance of deputy ministers. The Governor in Council approves the assigned performance rating. Ministers may request that a deputy minister be reassigned or removed. Removal would require agreement by the clerk and the prime minister and would be carried out by the Governor in Council. The appraisal of individual deputy ministers and the application of sanctions and rewards take place as part of an employment relationship rather than in a political context and for the most part remain confidential out of respect for due process and individual privacy. The aggregate outcomes of performance assessment and the allocation of at risk pay are made public on the Web site of the Public Service Human Resources Management Agency of Canada.