There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.
In September, Prime Minister Harper said he “profoundly disagreed” with the decision of Elections Canada not to require veiled women to submit to visual identification before being able to vote in federal elections. Harper added:
I have to say that it concerns me greatly, because the role of Elections Canada is not to make its own laws. It's to put into place the laws that Parliament has passed, so I hope they will reconsider this decision …But in the meantime, if that doesn't happen, Parliament will have to consider what actions it's going to take to make sure its intentions are put into place.
Harper was criticized for meddling in the decision of an independent agency responsible for managing and ensuring the integrity of federal elections.
Then, in December, the Government was stymied by a decision of the Canadian Nuclear Safety Commission (CNSC) to close down the Chalk River nuclear facility, run by Atomic Energy of Canada Limited AECL (a Federal Crown Corporation), over its failure to have appropriate back-up safety systems in place. This facility, it turns out, is responsible for a significant proportion of the global supply of isotopes required for medical imaging technology. The CNSC stuck to its guns and the Government was forced to enact a statute overturning the decision and reopening the Chalk River facility for 120 days to deal with the isotope shortage. Afterwards, the Minister for Natural Resources sent a letter to the President of the CNSC questioning her “fundamental good judgment” and indicating he was considering her removal.
These crises raise an important legal and political issue – what does independence mean in settings of government bodies? In other words, what does it mean for the Federal Government to intervene to reverse a Federal Regulator from damaging the commercial interests of a Federal Crown Corporation. All three bodies have a mandate to advance the public interest, and perplexingly, all three bodies, in different ways, are accountable to exact same Crown.
The relationship between the Government and the myriad agencies, boards and commissions which have been created with public interest mandates is poorly understood. From a legal point of view, these bodies are not truly independent at all. The Supreme Court has ruled that only judges enjoy constitutionally protected independence from the Government. Elections Canada, the CNSC, even the Auditor General of Canada, all are creatures of the Executive branch of Government As such, each of them has a minister responsible to Parliament for its activities. Governments in most cases appoint the members of these agencies, set their budgets and sometimes have the authority to intervene when they disagree with a finding (the Minister of Citizenship and Immigration, for example, recently intervened this week to postpone the deportation of Laibar Singh). The Executive branch is unwieldy, diffuse and performs disparate functions. Often, one part of the Executive has a mandate to review and hold accountable another part of the Executive. For example, the Canadian Human Rights Commission, part of the Federal Executive branch, recently ruled that the Federal Government owes millions in back pay to nurses working for Health Canada who were denied their due pay based on gender discrimination. The independence of Government bodies, thus, is a relative independence.
Executive bodies are not all created in the same mould. Some are adjudicative bodies like the Canada Labour Relations Board, which functions for all intents and purposes like a specialized labour court. Others include both an adjudicative and regulatory function – like the CNSC. Still others are purely regulators (like the Competition Bureau). And others include regulation, policy-making, prosecutions and adjudication (the CRTC is an example of this kind of “integrated” agency). Each of these bodies was set up because of the need for expertise (whether about how people vote or how nuclear facilities ought to operate) and some measure of independence from the Government.
Independence, in this sense, is a spectrum rather than a static threshold. At the more independent end of the spectrum are agencies with particularly sensitive oversight responsibilities are appointed, funded and answerable to Parliament – the Auditor General, Privacy Commission, the Public Service Commission and Elections Canada, all fall into this category federally, as do most of their provincial counterparts throughout the country. It is not necessarily the case, however, that Parliamentary offices enjoy greater independence than bodies appointed and funded by ministries. Courts, for example, which represent a separate branch of Government, and whose independence as noted above is constitutionally protected, are nonetheless still appointed and funded by the Executive.
To take another timely example, many would argue that the most independent government bodies in Canada are public inquiries, which depend on the Executive for their existence, their terms of reference, and their budget. Their independence flows not from a legal foundation (as we saw in the case of the Somalia Inquiry, the Government has the legal authority to shut down or cease funding an Inquiry it does not like at any time), but from a political foundation. Government’s have the ability to influence and even manipulate public inquiries, but are constrained from doing so by the public confidence and credibility enjoyed by public inquiries. Like overriding the Charter of Rights, this is a power which the Government has but will not use because it would be, in almost every circumstance, political suicide to do so.
If administrative agencies, boards and commissions are to achieve true independence, it will be for similar reasons. The legal and political foundations of independence are clearly related. One of the reasons why it has become politically unrealistic to interfere with public inquiries is because they are typically run by judges (Justices and Former Justices Gomery, O’Connor, Major, Lamer, LeSage, Goudge and Iacobucci all serve or served as Commissioners of public inquiries in recent years). When the President of the CSNC responded to the threat by the Minister of Natural Resources to remove her, she did not refer to his actions only as unwarranted and improper but as unlawful, contrary to the rule of law and the administration of justice.
The time is ripe for greater public awareness of and commitment to the independence of administrative agencies, boards and commissions. This independence arises not because agencies like the CNSC are a law unto themselves, but because such bodies have a legislative mandate to advance the public interest through their expertise. Unlike Courts, administrative bodies are creations of Parliament. They can be afforded narrow or broad mandates; they can be subject to ministerial intervention or free from it. Once Parliament has had its say, however, the Executive must respect the constraints which Parliament has imposed. It is appropriate for Government to insist such bodies conduct themselves in an accountable fashion, but it is inappropriate for the Executive to subvert their independence by attempting to manipulate regulatory outcomes.
What these recent confrontations suggest is that public confidence in independent oversight of government activity is increasing while public trust in the authority of the Executive is eroding.