10 April 2008

The Potemkin Cabinet

Newfoundlanders and Labradorians must surely be wondering about the government which they support through their tax dollars.

It does not function according to law, apparently.

Ross Wiseman, currently holding the title Minister of Health and Community Services told the Cameron Inquiry on Thursday that deputy ministers are appointed by the Premier. Wiseman said he was not consulted by the Premier and, indeed, had no knowledge of the appointment of a new deputy minister in his department in May 2007 until the deed was done.

Wiseman is misinformed.

All Canadian provinces operate according to the rule of law and Newfoundland and Labrador is no exception. Laws are approved by the elected representatives of the people in the House of Assembly and all people, including cabinet ministers are obliged to follow the rules established by law.

Wiseman would do well to check the statute books to see what his powers, duties and responsibilities are.

Under the Executive Council Act, deputy ministers and assistant deputy ministers are appointed by the Lieutenant Governor in Council.  As with the conventions long established in Westminster style governments, the first minister recommends the appointments to these positions but it is the Lieutenant Governor, on the advice of his or her council that approves the recommendations.

This is no small matter.

While the first minister may have the sole right to make the recommendations, it is not the first minister who holds the authority to make the appointments. Constitutional lawyers may now begin to quibble but the distinction is important.

Deputy ministers, after all, are supposed to be accountable for their management of the department to the minister appointed to the department. There are several lines of accountability for both the minister and especially for the deputy minister, but there is not supposed to be a situation in which the deputy minister does not, de facto, have to answer to the minister.

The federal approach is typical:

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.

Those words have great importance for the matters currently the subject of the Cameron Inquiry. Former health minister Tom Osborne has testified under oath that officials of his department did not provide him with a copy of an important briefing note prepared in late 2006 for the Premier. Osborne's predecessor, John Ottenheimer, has described a similar situation, one in which he was not sure of his own authority - that is, his power under law, to direct certain actions within his own department.

Both Osborne and Ottenheimer appeared to have been sidelined in the management of this very significant issue and there are other signs that this is so. There is some evidence to suggest that departmental staff reported to central agencies, i.e. those directly responsible to the Premier, before they passed information to the minister. It appears so at this stage, but there is much more testimony to come.  Final judgment will have to be reserved but even at this relatively early stage, we may sketch in the outline of how this particular administration appears to function.

And it is a most peculiar functioning indeed.  It is a government which has all the external trappings of cabinet government but which, in practice, holds that everyone is accountable directly to the Premier. If this sketch holds true, cabinet government and collective responsibility  - and collective authority - has been replaced by one large organization with notional subdivisions all reporting to a single individual.

A deputy minister would only ignore his minister   - such as by withholding crucial information - if he or she believed, rightly or wrongly,  that authority rested somewhere other than in the minister's office. In a world where the deputy minister's job tenure is solely the prerogative of the Premier and where the most senior public servant has only irregular meetings with the first minister, there is no value in keeping happy a minister who asks inconvenient questions.  Why bother to do anything but humour the poor minister when the person or people who count have offices on the eighth floor of the East Block?

As noted already, this is a sketch -  a hypothesis if you will allow  - based on a portion of the total evidence to be received by Madame Justice Cameron.

Sometimes, the outline of the mosaic can be seen, though, even if one hasn't finished pulling back to see the whole thing. You just have to look at the individual tiles and see how they fit together.