James Mitchell is an adjunct professor at Carleton University and a former assistant secretary to the Cabinet, Machinery of Government. Mel Cappe is a professor at the Munk School of Global Affairs and Public Policy and a former clerk of the Privy Council.
The leaking of CSIS documents about interference in our elections has sparked a misunderstanding about the role of public servants. After the now-famous leaker defended the release of information, Edgar Schmidt, a retired lawyer, wrote that public servants have a duty of professional loyalty, not to the government or the minister they serve, but to the public interest. He argued that their duty is owed to “the state” and not to its temporary governors.
Attractive though this idea may appear (after all, what do public servants serve if not the public interest?), it is dangerously wrong, and it is all the more dangerous because it is advanced by a former senior lawyer from the Department of Justice.
Public servants owe their professional loyalty to their ministers. This is because we live in a democracy – a parliamentary democracy – in which laws, which are made by Parliament, empower ministers to govern. From the Magna Carta through to today, the rule of law and the supremacy of Parliament have been the guiding principles of responsible government in Westminster democracies.
With the approval of Parliament, ministers are held accountable for their decisions by democratically elected members of the House of Commons. That’s our system of government, the one we inherited from the British, and it works well.
Public servants are employed to support ministers in doing what the law passed by Parliament requires and what the law allows. Indeed, they even advise ministers on public policy and what the law should be. But it’s ministers who decide public policy and it is Parliament that gives them the legal tools to do what they believe to be in the public interest.
The key point is that it is ministers, and not public servants, who determine where the public interest lies. It is they, the elected members of Parliament, and not anonymous officials, who decide what to do (and not to do). If Canadians don’t like how ministers are exercising their responsibilities, they can vote out the government at the next election.
The notion that every public servant has a duty to exercise his or her judgment on how best to serve the public interest violates the most fundamental principles of responsible government because it would make every public servant an independent and unaccountable decision maker. What if the leak of the documents on foreign interference had done major damage to Canada or to Chinese-Canadians or to our international relations? What if lives were endangered? What if a leak of confidential information on, say, a proposed corporate merger resulted in the loss of jobs or hurt Canadians’ pensions? Who would we hold accountable for that decision to leak?
In any democracy, some things must be kept secret, notably information on threats to Canada gathered by intelligence agencies such as CSIS. Those agencies operate within a tight (perhaps over-tight) framework of laws passed by Parliament that constrain their activities in many ways. Those laws reflect how Parliament has balanced the public interest in freedom of information with the public interest in security.
When people accept a job in government, they take an oath to keep certain sorts of information in confidence, even if they disagree with what the government is doing or not doing with it. They promise to faithfully implement policies with which they might disagree because that is their duty as a public servant. If ministers could not count on the professional loyalty of public servants to keep their secrets and implement their decisions, they would ignore their advice and they would be tempted to hire their own staff – tens of thousands of them. And we would be right back to the patronage system of 120 years ago.
The promise to faithfully serve the government of the day is one the leaker broke. We’ve read his or her justification for violating that promise. At bottom, it seems they simply grew tired of what they regarded as inaction by their bosses on an important issue. So, they leaked, for what they then claimed was the best of reasons – a deep concern over the public interest.
The Values and Ethics Code for the Public Sector states that its purpose is to “clarify the role and expectations of public servants within the framework of Canadian parliamentary democracy as laid out in the Constitution Act and the basic principle of responsible government, which holds that the powers of the Crown are exercised by ministers who are in turn accountable to Parliament.” Today, we need public servants who give their ministers courageous advice and professionally loyal implementation. And we need parliamentarians who hold that government properly to account.