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PRB 06-02E
Alex Smith
International Affairs, Trade and Finance Division
Revised 1 December 2008
PDF (133 Kb, 17 pages)
In addition to staff allotted to Members of Parliament and Senators for their parliamentary and constituency offices, ministers of the Crown can hire political staff which are paid by public funds. These are often referred to as “exempt staff” because they are exempt from the normal public service hiring processes and regulations. They are expected to provide ministers with the political support and advice that the non-partisan public service cannot.
Ministerial staff have become the subject of debate. Because they can have a significant influence on the development and administration of public policy, concerns have been expressed about their accountability and, on occasion, their ethical conduct. While there is some guidance and, more recently, legislation, governing the conduct of ministerial staff, there may be ways in which this guidance can be improved.
This paper provides background on the employment of ministerial staff and discusses issues of accountability and ethics. It examines guidance documents on the accountability of ministerial staff, explores several controversies involving ministerial staff and outlines standards of ethical conduct, such as conflict of interest requirements. This paper also looks at how Australia and the United Kingdom utilize ministerial staff.
Ministers are empowered to hire staff under the Public Service Employment Act. (1) The role of ministerial staff is to brief the minister on relevant policy, legislative and administrative issues; liaise with the department for which the minister is responsible, the Prime Minister’s Office and other ministers’ offices; prepare speeches and media releases; organize scheduling; and handle other administrative tasks as required. (2) The Privy Council Office describes their function in this way:
The purpose of establishing a Minister’s or Minister of State’s office is to provide Ministers and Ministers of State with advisers and assistants who are not departmental public servants, who share their political commitment, and who can complement the professional, expert and non-partisan advice and support of the Public Service. Consequently, they contribute a particular expertise or point of view that the Public Service cannot provide. (3)
While the employment of ministerial staff is exempt from the normal public service hiring processes and regulations, the management of ministerial offices and staff is governed by guidelines established by the Treasury Board. (4) The Treasury Board sets the overall budget range for staff salaries, a budget that varies depending upon departmental size and complexity, and it provides the salary ranges for various positions within ministerial offices. (5)
The prime minister sets the budget for each minister. Ministers with regional responsibilities and ministers with a parliamentary secretary receive more funds to hire staff than do other ministers. Ministers’ budgets also include funds for departmental assistants, that is, public servants who are seconded from the department in question to the minister’s office to liaise with the department and provide non-political departmental advice.
The minister has discretion to configure his or her staff as desired and to set the salaries, as long as the overall budget and salaries are within the specified ranges. (6) The minister also has complete discretion over hiring, although the Prime Minister’s Office is sometimes involved in the selection of senior staff, especially the chief of staff.
Ministerial staff usually obtain their positions through political and personal connections, a situation that has from time to time prompted some to question whether senior ministerial staff have adequate experience, training and professional standards for the jobs they hold. (7) On the other hand, a survey of 20 chiefs of staff who were in office in 1990 found that the average age at the time of appointment was 38 and most had at least several years of work experience in ministers’ offices. (8)
Ministerial staff have very little job security. They cease to be employed 30 days after their minister is no longer a minister, and they can be dismissed at the discretion of the minister with no mechanisms for complaint or appeal. They are entitled, however, to severance pay, and the minister may provide separation pay. (9) As well, ministerial staff contribute to a public service pension and receive health and other benefits. (10)
In September 2008, at the dissolution of the 39th Parliament, there were just over 600 ministerial staff members serving 27 ministers and 5 secretaries of state. (11) This included approximately 80 staff members working for the Prime Minister’s Office.
By legislation and convention, ministers are accountable to Parliament for the operation of their departments. The senior public servant of the department, the deputy minister, is accountable to the minister, and in turn, public servants within the department are accountable through the bureaucratic hierarchy to the deputy minister. (12) Similarly, ministerial staff are accountable to their minister.
On behalf of the prime minister, the Privy Council Office provides general advice to ministers in a guide entitled Accountable Government: A Guide for Ministers and Ministers of State, which includes a section regarding ministerial staff. According to the guide, “Ministers and Ministers of State are personally responsible for the conduct and operation of their office.” (13) While ministerial staff regularly interact with departments within the minister’s responsibility, “[e]xempt staff do not have the authority to give direction to public servants, but they can ask for information or transmit the Minister’s instructions, normally through the deputy minister. Good working relations between the Minister’s or Minister of State’s office and the department … are essential in assisting the Minister and deputy minister in managing departmental work.” (14) In 2006, stronger language regarding exempt staff–public service relations was added to the guide:
Such a relationship requires that exempt staff in the Minister’s office respect the non-partisanship of public servants and not seek to engage them in work that is outside their appropriate role.
In meeting their responsibility to respect the non-partisanship of public servants, exempt staff have an obligation to inform themselves about the appropriate parameters of Public Service conduct, including Public Service values and ethics, and to actively assess their own conduct and any requests they make to departmental officials in the light of those parameters. Ministers and deputy ministers should be vigilant in ensuring that the appropriate parameters of interaction between officials and exempt staff are observed.
To the extent practicable, relations between officials and exempt staff should be conducted through the deputy minister’s office. The deputy minister’s office should be informed about contact between exempt staff and public servants in the department. (15)
The very broad and general guidance provided by the Privy Council Office presents an ideal picture of the interaction between ministerial staff and departmental officials, but, as a former Clerk of the Privy Council admitted, there is “a huge amount of flexibility in our system about who interacts with whom and we don’t have walls to stop it.” (16) The numerous contacts between ministerial staff and departmental officials can make it impractical to inform the deputy minister’s office of each interaction, and there can be genuine reasons to bypass the hierarchy, such as urgent reaction to a crisis. Also, interaction between a minister’s office and the department covers a wide variety of activities, which may range from participation in departmental meetings to advice on revising a document or a funding formula.
Whether “advice” from ministerial staff constitutes inappropriate “direction” can be a matter of interpretation, especially since ministerial staff often act as a proxy for a busy and preoccupied minister. In practice, it may be very difficult for a public servant to tell whether ministerial staff are passing on ministerial instructions or acting on their own initiative. Ministerial staff have no legislated delegated authority, but may nevertheless speak on behalf of their minister. Liane Benoit, who conducted a study on ministerial staff for the Commission of Inquiry into the Sponsorship Program and Advertising Activities, sums up the situation: “To the issue of whether political staff give, or attempt to give, direction to departmental officials, one can only conclude that the practice is subtle, reasonably pervasive and, in many instances, a practical necessity.” (17) She goes on to say, “As long as all sides stick to their respective roles, the system, by and large, bumps along with an acceptable degree of efficacy, efficiency and propriety. Except, of course, when it doesn’t.” (18)
On several occasions, the actions of ministerial staff have been the source of political controversy, which has raised concerns about their accountability. The following are three high-profile cases.
In 1991, Mohammed Al-Mashat, a former Iraqi ambassador to Washington during the Gulf War, discreetly requested and received highly expedited permission to enter Canada as a landed immigrant. (19) When this occurrence became known, controversy erupted and the then Secretary of State for External Affairs, Joe Clark, said he could not be held responsible for this extremely sensitive decision, because he had not been made aware of Al-Mashat’s application. After an internal inquiry, the government placed blame on the associate undersecretary of state for External Affairs and on Mr. Clark’s chief of staff for not doing enough to bring the matter to the attention of the Secretary of State.
In 2004, the then Minister of Citizenship and Immigration, Judy Sgro, was accused of giving temporary residence and work permits to people who had volunteered on the Minister’s re-election campaign. The Ethics Commissioner was asked to investigate the alleged conflict of interest. (20) The Commissioner concluded that the main burden of responsibility for placing the Minister in a conflict of interest lay with the Minister’s chief of staff, who continued to work on departmental matters during the election. The Commissioner said this did not absolve the Minister of responsibility, quoting from Privy Council Office guidance stating that ministers are responsible for the actions of officials under their management; but he noted that the meaning of “responsibility” in this context was rather vague.
In his 2004–2005 investigation into the Sponsorship Program administered by Public Works and Government Services Canada, Justice John Gomery concluded that there was direct input by the then minister and his staff, as well as the chief of staff for the prime minister, regarding the selection of particular activities for sponsorship support by the Government of Canada. Justice Gomery determined that this constituted inappropriate “political encroachment into the administrative domain.” (21) Moreover, the deputy minister at the time was not kept informed of interactions between the minister’s office and bureaucrats in charge of the program.
Justice Gomery recommended that the government prepare a code of conduct for ministerial staff, which would include provisions that “exempt staff have no authority to give direction to public servants and that Ministers are fully responsible and accountable for the actions of exempt staff.” (22) Justice Gomery also recommended that, to help them understand their role, “all exempt staff should be required to attend a training program to learn the most important aspects of public administration.” (23)
As ministerial staff often act on behalf of their minister and serve as a buffer between the department and the minister, they wield considerable influence, if not de facto authority. While they are not to direct public servants, there is a lack of clarity about what constitutes appropriate interactions with public servants. These examples demonstrate how this lack of clarity has led to disputes over the proper role of ministerial staff and what it means for the minister to be responsible and accountable for their actions when controversy arises. Apart from the brief advice provided in the Privy Council Office’s Accountable Government guide noted above, the role of ministerial staff remains relatively undefined.
While guidance on the accountability and responsibility of ministerial staff is somewhat limited, there are detailed standards of ethical conduct for ministerial staff with respect to conflict of interest and lobbying.
The adoption of the Federal Accountability Act in December 2006 put standards of ethical conduct for ministerial staff into law. This Act brought into force the Conflict of Interest Act and made significant amendments to the Lobbyists Registration Act, including renaming it the Lobbying Act. Both Acts contain provisions that outline various requirements and prohibitions for ministerial staff. Prior to this, the actions of ministerial staff in these areas were primarily governed by a code of conduct set by the prime minister – the Conflict of Interest and Post-Employment Code for Public Office Holders. (24)
The Conflict of Interest Act has several purposes: to establish clear conflict of interest and post-employment rules, to minimize the possibility of conflicts of interest and to establish the Conflict of Interest and Ethics Commissioner. Many of the Act’s provisions apply to ministerial staff. (25) Under the Act, ministerial staff must:
In addition, Ministerial staff must submit a confidential report to the Conflict of Interest and Ethics Commissioner in which they disclose their assets and liabilities and describe certain activities. They also must report gifts exceeding a value of $200 from any one source other than friends or relatives, all firm offers of employment and the acceptance of offers of outside employment.
Ministerial staff are also required to publicly declare if they have recused themselves in order to avoid a conflict of interest. They must publicly declare assets that are neither controlled (whose value could be directly or indirectly affected by government decisions) nor exempt and they must declare certain outside activities, gifts of a value of $200 or more and travel accepted as part of their official duties. (27) They must divest themselves of controlled assets by selling them in an arm’s-length transaction or by placing them in a blind trust.
The Conflict of Interest Act also prohibits certain post-employment activities. Ministerial staff are not permitted to do the following:
The Conflict of Interest and Ethics Commissioner has numerous responsibilities relating to ministerial staff. (28) The Commissioner reviews the confidential reports provided by ministerial staff, provides confidential advice, maintains a registry of public disclosures, may investigate possible instances of non-compliance with the Act and may order ministerial staff to take any measures necessary to comply with the Act.
Violations of certain sections of the Act relating to confidential reports, public disclosure and divestment of assets can be punishable by a fine of up to $500. However, no penalties are specified for failing to adhere to the many prohibitions or the post-employment provisions in the Act. The Commissioner, though, issues public reports about investigations into possible contraventions of the Act and may order current ministerial staff not to have official dealings with former ministerial staff. (29)
In addition to the numerous provisions outlined in the Conflict of Interest Act, former ministerial staff are prohibited under the Lobbying Act from engaging in lobbying activities, as defined under the Act, for a period of five years after ceasing to be ministerial staff. (The Commissioner of Lobbying is able to grant exemptions to this five-year ban on lobbying.) The Commissioner of Lobbying can investigate possible contraventions of this Act, and the penalty for such contraventions could be a fine of up to $50,000. The Commissioner can also make public any offence committed under the Act and name the offender.
There are also several ethical guidelines for ministerial staff in the Privy Council Office document Accountable Government: A Guide for Ministers and Ministers of State. One example is this: “Public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of the government are conserved and enhanced.” (30) Compliance with these guidelines is considered to be a term and condition of appointment.
Canada’s parliamentary system is not the only Westminster system to employ political ministerial staff with public funds. Both Australia and the United Kingdom began systematically to use ministerial staff, or “special advisers” as they are called in the United Kingdom, in the early 1970s. (31) In both countries, ministerial staff have become the source of considerable controversy and subsequent parliamentary study and debate.
In Australia, ministers are empowered to hire staff and consultants under the Members of Parliament (Staff) Act 1984. In 2003, there were approximately 370 government staff, in addition to the three staff members allocated to each Member of Parliament. (32)
The behaviour of ministerial staff is guided by a Code of Conduct for Ministerial Staff, which was released in July 2008. (33) The code directs ministerial staff to behave honestly and with integrity; to take reasonable steps to avoid conflicts of interest; to declare all hospitality, gifts and travel received; and to have no involvement in outside employment. It also contains several provisions outlining appropriate relations with the Australian Public Service (APS). Ministerial staff must:
The actions of ministerial staff have been the source of several political controversies in Australia, especially the “children overboard” affair. (35) This event resulted in a study and report by the Senate Select Committee on a Certain Maritime Incident, which in turn led the Australian Senate Finance and Public Administration References Committee to conduct a review of the governance and accountability of ministerial staff. (36) This latter committee recommended that the government define ministerial staff in legislation, develop a code of conduct and statement of values, publish an annual report on their numbers and cost, establish an ethics adviser, provide adequate training and allow ministerial staff to appear before parliamentary committees.
A key concern in Australia is whether ministerial staff can be compelled to testify before parliamentary committees when controversy arises. (37) For the most part, ministers have resisted allowing their staff to appear before committees to answer questions.
In the United Kingdom, ministers’ private offices are run by civil servants called principal private secretaries. Ministers are authorized to appoint up to two special advisers (paid or unpaid) for their offices by making temporary appointments to the civil service. (38) The prime minister is not subject to this limit and may allow exceptions to this rule. (39)
It is worth noting that in 1997 up to three special advisers to the Prime Minister were authorized to have executive powers. This has since been rescinded. (40)
The government reports annually on the numbers, names, pay ranges and overall cost of special advisers. (41) As of July 2008, there were 73 special advisers, and in 2007–2008, the annual cost was £5.9 million. (42)
The conduct of special advisers is guided by the Code of Conduct for Special Advisers and a Model Contract for Special Advisers. (43) According to the code, special advisers provide assistance that is more politically committed and politically aware than would be available from the permanent civil service. The code states that special advisers should:
The role and status of special advisers have been the subject of considerable debate and some controversy in the United Kingdom, particularly with respect to communications. This has resulted in numerous studies and reports, both by a parliamentary committee (44) and the Committee on Standards in Public Life. (45) The reports have raised concerns and made recommendations about the recruitment process, numbers, training, conduct and accountability of special advisers, as well as their relationship with the permanent civil service.
In response, the government developed and updated the above-mentioned Code of Conduct for Special Advisers and Model Contract for Special Advisers. In March 2008, it also presented a Draft Constitutional Renewal Bill, which includes a definition of special adviser and formalizes the requirement for a code of conduct and an annual report on the number and cost of special advisers.
Ministerial staff have become a significant part of the Canadian political system and play an important role in assisting ministers in ways that non-partisan public servants cannot. Ministers are provided with detailed guidelines for the employment of ministerial staff and some guidance on their accountability. Additionally, there are extensive legal requirements governing the behaviour of ministerial staff with respect to conflict of interest and lobbying. However, ministerial staff have been involved in a number of political controversies, which has led to considerable debate over their role and accountability. These debates are similar to those in other countries that employ ministerial staff. In both Australia and the United Kingdom, controversies have arisen over the actions of ministerial staff and proposals for change have been made.
While it may not be possible to avoid political controversy entirely, some areas could be clarified: