In defence of the Deep State: why democratic rule doesn’t mean letting politicians run everything

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It is an elementary principle of democracy that the people we elect to run things should not in fact run things. They should, as the phrase has it, steer, but not row: set the broad direction of policy, but not involve themselves in the details of its implementation.

A version of this is found in the separation of powers: between the executive and the legislature – not the absolute bar, in a parliamentary democracy, it is in a presidential one (cabinet ministers, in our system, are a part of both) but nevertheless an important constraint on both – and between the judicial branch and the other two.

But the concept applies within the executive as well. A cabinet minister has no more right to interfere in a police investigation or a prosecution than he does to lean on a judge to find a case a certain way.

Neither is this principle confined to law enforcement. The Bank of Canada is a creature of government, and ultimately the government is answerable for the policies it pursues. Yet the government may not, by convention, direct it to raise or lower interest rates or otherwise meddle in its operations – not unless it is prepared to endure the resignation of the governor, and the political and economic storms that would follow.

And so across the government. Not only are Crown corporations, like the Bank of Canada, expected to be insulated from political interference – that’s why they exist, as agencies set apart from ordinary government departments – but so are the various agencies and tribunals, from the CRTC to the Canadian Industrial Relations Board to the Competition Bureau, that govern much of our social and economic life.

The same applies again to the various officers of Parliament – the Auditor-General, the Chief Electoral Officer, the Parliamentary Budget Officer, plus the Information, Privacy, Ethics, Official Languages and Public Sector Integrity commissioners.

Common to all is the arms-length principle: the notion that power may legitimately be exercised by people who, though they are ultimately accountable to and a part of the institutional structure of democratic government, nevertheless operate outside the direct control of elected officials.

This is in turn an expression of the idea of limited government: the idea that power in a democracy, though it is derived from the people, should nevertheless be divided, rather than unified; diluted, rather than concentrated; limited, rather than limitless.

How does the distinction between steering and rowing – setting policy versus implementing it – fit with this? Partly this is a matter of transparency. Broad statements of policy are by their nature public, fully exposed to scrutiny and discussion. As such they are difficult to twist to personal or partisan advantage, or to the detriment of other principles of good governance.

The day to day operations of government, on the other hand, are typically opaque and hard to follow, especially for the public. So while elected officials can be entrusted with policy setting – entrusted, in the sense that they can be held to account for it – it would be foolish to do the same with day-to-day policy implementation.

Judges and bureaucrats may have their own biases and temptations, but it is easier (though still challenging) to insist that they follow the policy laid out by elected officials than it is to ask the same of elected officials themselves – not least because it is elected officials who would have to enforce this requirement.

And yet this basic principle of democratic governance seems to elude a great many people – on both sides of the political divide. Whether it’s Conservatives proposing to override the Supreme Court or fire the Bank of Canada governor, or Liberals messing with an independent prosecutor – or, the scandal du jour, an RCMP investigation – supporters’ reaction to criticism is always the same: He’s the prime minister. He’s elected. They’re not. Who are these unelected elites – the gatekeepers, the Deep State and other epithets – to stand in the way of our elected leaders? So the prime minister ruffled a few bureaucratic feathers. That’s democracy.

But this is to confuse democratic government with executive power. Democratic government means government that is answerable to the people, not just empowered by them. We should wish, in the name of democracy, to make the decisions we take collectively more democratic, not to decide everything democratically; to give the people more control of the government, not the government more control over the people.

In the same vein, democratic government means an executive that is accountable and rules-based – that abides by the rules it sets for itself – not an executive that can act in whatever arbitrary or despotic way it likes by appealing to the “popular will.” If anything, then, we should be looking for ways to apply the steering-versus-rowing distinction more broadly, not to undermine it where we find it already.

The question is not why Crown corporations are not run in the same way as government departments, but why government departments are not run more like Crown corporations. The combination of accountability and independence that governs the operations of the Bank of Canada – the government and the bank strike an agreement on long-term policy objectives, after which the bank is left to see that these are put into effect – could well serve as the model for government generally.

This approach, and the set of ideas that underlie it, is sometimes called the New Public Management (though it is decades old), or the “New Zealand model” after its most enthusiastic practitioner. The idea is to set up government departments at arms-length from their ministers. Instead of the traditional minister-deputy minister relationship – in which it is often unclear who is the master and who is the servant – the minister negotiates a performance contract with the head of the department, with clear objectives and measurable benchmarks for assessing how far these have been achieved.

The minister, then, is responsible for the terms of the contract, and the results. Everything in between – how to achieve the contract’s objectives – is up to the department head. The minister of transport, for example, would be responsible for the broad outlines of roads policy. She would have no say whatever in which road went through which riding.

In effect, the government becomes the purchaser of public services, rather than the provider. Governments as providers are in an inherent conflict of interest. When something goes wrong, their every incentive is to deny that anything has gone wrong. As purchasers, on the other hand, they are expected to be demanding customers – and to shop around for alternatives, should the department head, or the department itself, not provide satisfactory service.

This is a long way, I realize, from simply refraining from meddling in a police investigation. But the underlying principles are the same, and the starting point for any reform is broader public understanding of the principles.

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