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A primer on the role of public servants and other government officials. Short title is “why it’s always someone else’s fault.”

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The public service exists primarily to serve the Government. In this context, Government is the Privy Council (Executive Council provincially), what normal people call the Cabinet. Note that only ministers are part of the Government; backbench MPs/MLAs are not.

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Generally speaking, the role of the public servant is to advise the Government and to implement the lawful decisions that the Government makes. Public servants are expected to be loyal, non-partisan professionals.

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Advice to Government is highly protected, approaching the level of privilege afforded to legal advice. Ministers are free to debate and consider various options amongst themselves without fear that the content of those deliberations will become public.

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When a decision is made, convention demands that the entire Government is collectively responsible for it. Any minister, by choosing not to resign, has fully endorsed that decision and has agreed to bear joint responsibility for it.

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Public servants are not, generally speaking, decision makers. They bear no responsibility for the decisions made by Government. Instead, they are only accountable to the Government for the quality of the advice and information that they give.

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Notionally, governments that make bad decisions will earn the wrath of voters and will suffer the consequences in an election. The public servants will continue; they suffer no consequences for those decisions as they weren’t responsible for them.

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Obviously, governments will de temps en temps make decisions that at least some of the public servants disagree with and may even have recommended against. That is the Government’s prerogative and is accepted. Indeed, it is inevitable over the course of a career.

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The public servant is also charged with implementing the Government’s decision. It would thus be improper for the public servant to publicly criticize the decision — their duty means they have to support the decision.

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As a result, non-partisan public servants in positions of prominence, including senior officials, will often be giving messages that are consistent with the Government’s lines. Within the appropriate limits, this is proper.

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There is a fine line where messaging becomes partisan. Public servants should not go that far. Instead, this is the role for political staffers, which are taxpayer-funded staffers working directly in the ministers’ offices (e.g., TheMatts).

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Unlike public servants, political staffers serve “at pleasure.” If the Government is defeated, they will lose their jobs along with that of the Government. Political staffers provide the political considerations that go into governing.

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As with everyone that is large and complex, nuances exist. The lines aren’t always so boldly defined. So, there are a few classes of exceptions to the normal public servant role.

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The first are the Officers of Parliament and equivalent. These officials include the Auditor General, the Elections Commissioner, the Ethics Commissioner and the Information and Privacy Commissioner and their staff. They are technically not part of the public service.

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These Officers are appointed directly by the legislature and similarly report directly to that body; no minister is accountable for what these Officers do. As a result, they are independent. Government cannot direct their work or what they say.

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A second category of exceptions generally include officials with some form of regulatory role. These roles are generally supposed to be done without the air of any political interference, and so these officials have some independence.

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These officials tend to be appointed for one or more fixed terms “on good behaviour” meaning that they can only be dismissed for cause. There can also be a requirement for informing the legislature of the intention to hire or dismiss such an official.

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In addition, the legislation providing for these officials will also set out what decision-making authority these officials have. In those circumstances, it is the official and not the minister who is responsible for making that decision.

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In these cases, where the minister and the official disagree, it is the official who makes the decision and whose views on the matter prevail. By law, these officials cannot just simply do whatever the minister wants; the officials must exercise their own judgment.

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The pretentious maxim for this is “delegatus non potest delegate” (my long threads require some pretentiousness). The person given the authority does not have the power to give that authority to someone else.

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Unlike Officers of Parliament, ministers remain accountable for the decisions of these officials and must answer to the legislature for them. The recourse of the minister for a wonky official is to seek to dismiss for cause.

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And because we can’t even make the boxes this neat, there are also public servants who have some limited decision-making powers but are otherwise not independent of the Government. These include the heads of agencies over which a minister presides.

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In these cases, the official is sometimes issuing a decision under the minister’s authority and sometimes under that official’s own authority. In all cases, the responsibility for those decisions properly rests with the minister and the Government.

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A minister, of course, is unable to make every single decision, including all of the decisions that have some importance, personally. For example, the Minister of National Revenue does not personally review and assess every single income tax return.

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Many of the powers of a minister, including some decision-making power, are exercised by public servants acting on behalf of the minister. This is accepted and is even necessary given the size of government.

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Those public servants, however, are not exercising their own discretion but that of the minister in these cases. Essentially, they are all wearing wristbands with WWtMD (“What Would the Minister Do?”), and they follow that adage religiously (as if it were).

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Where those public servants also have some decision-making authority directly given to them by the governing statute, the WWtMD rule doesn’t govern. But that authority has to be exercised consistently with the Government’s larger decisions. This limits discretion.

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As a result, the official’s decision might seem like a poor one on its own. However, it has to be assessed within the constraints imposed by those broader Government decisions. In that context, it might be the best option actually available.

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In any event, the official is a public servant accountable to a minister and to the Government. If an official is doing a bad job of exercising any powers assigned to that official (even within the imposed constraints), it is the Government that is responsible for that.

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By not taking any corrective action, including by replacing the official (or a less extreme measure), the Government is shouldering the responsibility for anything the official has done. And the Government will be judged on that record at the next election.

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So, all of this goes to say that people should not be surprised when an official who is a public servant speaks or does something that is consistent with the Government, even when it would appear to not be or should not be the official’s actual view.

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When that happens, the official is respecting the proper lines of authority and implementing the lawful decisions/directions of the Government. The Government deserves the credit or the blame, as the case may be, for those decisions/directions.

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Needless to say, it often serves a Government’s partisan interests to try to hide behind public servants. Don’t let them get away with this.

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Where greater independence is warranted, it should be guaranteed by enshrining that in the statute that sets out the role and responsibilities for that official. This would include making the official be appointed on good behaviour, etc.

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