23 May 2016

How government decides - From Bow-Wow to Basenji #nlpoli

The Liberals' signature policy initiative is Bill 1.

It is so important that it is the only piece of new legislation the Liberals have introduced in this session that is directly connected to their election promises.

Bill 1 creates a new appointments commission that is supposed to ensure individuals appointed to positions by cabinet will be selected as the result of what the proposed law calls a merit-based process.

A merit-based appointments process for every appointment is such an important policy for the Liberals that, when faced with their first significant appointment,  they abandoned their own process last week.

The new information and privacy commissioner will get the job under the process included in the revised access to information law passed by the House last year.  The official reason is that there isn't enough time to get the new commission in place by June when the current commissioner's term expires.

That is just an excuse, though. They could have easily amended the access law to allow cabinet to leave the existing commissioner in place for one year.  Before the end of that period, they'd run a competition and make a significant appointment under their new process.

Whoever gets the job will be in place for a decade so this is not a trivial matter.  The appointment of a new commissioner for access and privacy offered the Liberals an opportunity to highlight their commitment to a new direction in the public's right to note. What's more interesting, though, is that the decision on who gets to be the new commissioner will be made by a group of individuals who were all appointed by the previous administration using a process the current crowd supposedly don;t believe was correct. One of them, in fact,  came to her current job in a very shady and still unexplained set of circumstances.

The description of the sort of individual they are looking for plus the composition of the panel make it most likely that the new access commissioner will come from inside the public service. It is highly unlikely the new person will come from outside the public service. In other words, cabinet will get a very narrow range of choices that meet with the approval of senior public servants based on criteria that, from all appearances, the bureaucrats drafted.

To understand the importance of this, you have to look at where the idea of this appointments commission came from in the first place. The Conservatives made a string of appointments where the folks involved had absolutely no relevant qualifications. The most notorious - and least reported - was the case of one senior cabinet minister who got her paramour appointed to run the board at Nalcor. There have been other comparable appointments since 2003.

The Liberals proposed to replace that approach with one that appointed individuals based on merit. That makes the definition of "merit" a very important thing. The word "merit" appears 16 times in the draft law.  The word "merit" is undefined.  There is a description of a "merit-based process" but that says merely that it is a process used to make the decision. In the debate on second reading of Bill 1,  the word "merit" turns up 47 times.  Not a single person who spoke in the House defined what "merit" means.

When you don't know what a goal is, you can never know when you reach it.  Or you can claim victory no matter what you do.  If your goal is "merit" and you have no clear definition of "merit" then the word can mean whatever you want it to mean. You can simply substitute one sort of biased decision-making for another.

In this case, it looks like the Liberals have basically taken a decision that used to be made by elected representatives of the people and handed it to unelected people.  Politicians will be reduced to the job of a rubber stamp. They will give up their right to make a decision. That's really troubling because that's essentially the main job a politician has. They get to decide. Our ancestors spent hundreds of years and countless thousands of lives trying to wrestle the power to make a decision away from unelected people. What we have been doing in this province over the past decade is slowly giving that power away.

That's the thing.  Politicians cry about Ottawa and Quebec but the reality is that those same politicians have been the ones letting go of their own ability to make decisions.  It wasn't just the Tories and it is not just the Liberals. What is going on in the first few months of the new administration has been going on for most of the last couple of decades. You'll find a few posts about this trend at SRBP,  one of the more important ones being a gem from 2012.  It started when the members of the House decided in the late 1990s to sit for fewer hours, debate less, and let the government decide more on its own.

The budget is the only thing that the government must get approved by the House every year. That's in the Constitution Act.  Since the late 1990s, though, the budget gets a mere 75 hours of debate.  The House leaders for the three parties name members in groups to listen to presentations on different aspects of the budget.  They are supposed to be committees reviewing the budget in detail.  Practically speaking, the politicians don't' form a proper committee. They just resemble an audience going through a pro forma exercise or a pantomime where everyone knows the script off by heart.

Members scarcely have time to digest the audited reports from the previous fiscal year before they are plunged into the new budget. It's hard to ask an intelligent question under those circumstances. The committees don't exist before the budget debate and they don't meet afterwards.  They have no staff to do ongoing work and even the opposition parties don;t have much in the way of research staff to make up the slack.  It's worse again for the Conservatives this year:  they decided to pay a handful of staff top dollar for the same jobs they used to do in the Premier's Office.  The result is that the office is short of people to do the legwork.  One of the highly paid crowd is former cabinet minister Sandy Collins. He spends most of his time spitting out foolishness on Twitter when that money could be going to making sure the politicians in the House are better prepared than they are.

This decreasing role for politicians is reflected in the way Kathy Dunderdale, for example, looked at appointments to the board of directors at Nalcor.  As far as Kathy was concerned people on a board could just be any old person because the real work was done by officials, who were the experts.

At the time, SRBP asserted that the board at Nalcor didn't matter since it was cabinet that actually directed Nalcor. A couple of years later, it was clear that Nalcor was run from the Prremier's Office.  The 8th Floor used to control just the Lower Churchill project but after Danny Williams created Nalcor, it seems he expanded the practice to the whole of the corporation.  We got some insight into that courtesy of Des Sullivan, who recounted a story about former natural resources minister Jerome Kennedy and control of Nalcor.

Kennedy had wanted to install an oversight committee of financial experts, including folks outside government, to ensure Nalcor reports were accurate and that the company was on track with Muskrat Falls.  That committee would have reported to Kennedy presumably and the Premier. Dunderdale would have none of it, as Sullivan told the story, and so Kennedy gave up politics with the latest of a string of frustrations.

Now put that with the recent memo written by an official of Nalcor to give a few reasons - all false or misleading - for cabinet to chew over as they endorsed continuing with Nalcor's pet project.  If cabinet had any real power to make any decision, there's no way that the Premier and senior officials of the administration on the political side would dare to put such a document in front of them. The memo and cabinet's endorsement of Muskrat Falls is another step along the path we have been on.  It is a path that has moved power from the House of Assembly to cabinet and now from cabinet to the Premier's Office.  The "independent" appointments commission now takes one of the Premier's most significant powers and hands that to a group of unelected officials. Even the Premier is reduced to a rubber stamp.

But even that isn't really the end of it. The job of picking a new person to adjudicate government decisions on public access to government documents will be picked by public servants.  If they actually pick a career public servant - as they almost certainly will -  the committee of public servants will follow the trend in the other statutory offices like the child and youth advocate in which someone from inside the system takes over an office that was supposed to be a check on official power.

The child and youth advocate isn't the only one compromised by previous connections who has proven to be particularly ineffective. The current information commissioner endorsed Bill 29 and has a record of apparent personal or partisan bias in some decisions. The current auditor general is the former deputy minister of finance who oversaw the unprecedented overspending and accumulation of public debt is now supposed to offer impartial advice on public finance. The most senior public servant in the House of Assembly used to be the most senior public servant in the province. The Conservatives appointed an active partisan as chief electoral officer. 

As we take more and more control from elected representatives accountable to the public and hand it to unelected officials,  it becomes easier and easier to imagine a day when Newfoundland and Labrador is once again ruled by a committee. After all, last week, in a House where the government's signature policy is to give power to bureaucrats,  the politicians were excited about the fact that one of their number wanted to be able to vote against his caucus-mates in the House but still sit with them so he could collect his entitlements.  Government by committee doesn't seem all that far away sometimes.