Has the federal government’s ethics program failed?

As 2013 comes to a close, it is  time to take stock of the state of the federal government. It  has been a year of years, with the Senate Scandal dominating. It wasn’t the only story involving dodgy ethics, either. Former Justice Canada lawyer Edgar Schmidt was pushed out of the Department for challenging a policy which lets the Conservative government propose any law unless a legal analysis shows a 95% chance that it will be ruled unconstitutional. Sylvie Therrien was fired for speaking out against an unethical government policy in which EI auditors were given quotas (see our earlier post on this).  There are more, simmering below the surface, either pushed aside by bigger stories.   or they have  become so routine that the media barely notices them anymore.

For those of us at Canadians for Accountability, this is a serious issue that goes beyond mere occasional scandal. Is the government ethics program a failure?

When unethical behaviour is unchecked – and even rewarded, for example with promotions – administrative evil is the result. Canada has seen its share in residential schools and eugenics programs (which Alberta had until 1972).

Fighting this tendency is a challenge as old as government. Aristotle spoke of it, and argued that virtue is key. He and others after him believed  those who governed needed to remain ethically conscious.  Public servants need to be critical and active citizens, attentive of social and economic outcomes of policy – and to engage with the broader community or society. This, he believed, was more powerful than rules. Others prefer a darker view of human nature,  demanding transparency and layer upon layer of rules.

The ethics program in Canada’s federal government is, at least on paper, a combination of both. In reality, it leans heavily on rules. There are now a dizzying number of commissioners –  privacy, information, integrity, Senate ethics, Parliamentary ethics, and lobbying. On top of this are the Auditor General, the Chief Electoral Officer and the Procurement Ombudsman, and others at departmental levels. Each of these is backed by detailed laws, regulations, and codes – typically with massive loopholes and no means to sanction those who flout the rules. Even the public service code of ethics, which should list ideal values, reads  like a set of instructions.

What has changed? Are things getting better? Hardly.

Putting 2013 aside, look back over the past ten years and you see the Afghan detainee scandal, the firing of Linda Keen after the shutdown of the Chalk River isotope production facility, the firing of scientists following their rejection of bovine growth hormone, and, of course, the Sponsorship Scandal, to name a few. There were even, ironically, scandals involving the former Integrity Commissioner and the head of the Canadian Human Rights Tribunal.

It’s  arguable that the flawed reasoning and implementation behind so-called self-regulation schemes in food safety and transportation contributed to the deaths in the 2008 listeriosis outbreak and the crash at Lac Mégantic. While reduced oversight  were advertised as increasing accountability, efficiency and effectiveness,  information from insiders make it clear the most important reasons were cost savings and ideology.

In all the cases mentioned, those who dissented were punished. However, those who executed orders faithfully were not – even when wrongdoing was evident and rules had clearly been broken (with the exception of Chuck Guité, one player amongst many in the Sponsorship Scandal). Typically, senior bureaucrats responsible face at worst a shuffling to another job, which they – with a straight face – will argue is a severe consequence. Frequently they are rewarded with promotion.

This sends the message that the most important value is loyalty upwards (and not to the public) and that leaders are the arbiter of values. It also makes it clear that there exist unspoken, more self-interested values that are more important than the written ones. It is only at lower levels where traditional values are applied, to the detriment of the bureaucrat who wants to do their job correctly.

Even where rules exist, they haven’t worked. There have been a few embarrassments, but all the commissioners and rules haven’t had a demonstrable effect on public service ethics. This is unsurprising, given the loopholes, limited resources and tendency to hire Ottawa insiders to fill the roles. And when the government gets an ethical  “maverick” – like Kevin Page – it does everything it can to discredit and get rid him or her.

So we are now in a situation in which there is no underlying ethical structure for politicians (perhaps a utopian hope, a cynic might say) or for the bureaucracy. Successive scandals have uncovered attitudes and behaviours that are at odds with those of broader society, revealing a kind of moral rot which sees maintaining public confidence (nothing to see here, folks, move along) as more important than fixing problems that could cost lives. Honesty and Integrity are thrown out in the garbage, not even important enough to merit a green bin for recycling.

Efforts to provide rules for every situation have been consistently undermined by self-interested legislators and senior bureaucrats who want to avoid accountability. Even where clear rules exist, they seem to be viewed as obstacles – or, again, are ignored. They are, after all, mere window dressing, providing the illusion of action. And let’s be realistic: it’s simply impossible to write a rule for every situation.

So what can be done about this? Perhaps a new approach is needed – one that focuses less on detailed rules and codes and more on broad rules along with organizational structures and incentives which promote ethical decision-making. For example, is it a good idea that the PM and Clerk of the Privy Council select all senior bureaucrats? We think not.  When officials are rewarded for unquestioning loyalty, they will choose subordinates they know they can rely on to do the same. The Public Appointments Commission and Public Service Commission could go a long way in getting around this selection bias. And even small things matter: performance pay, a great way to reward loyalists but a lousy way to improve real performance, should be eliminated.

Conservative MP Michael Chong’s bill to give more power and relevance to MPs would also be a step in the right direction, giving them back their vital oversight function.

And above all, Canadians need to remember when voting that everything is connected – ethical lapses and shortcuts in one area can spill into another. People who believe it’s all right to pay someone for their silence also tend to believe that it’s all right to cut corners on food safety and drug approvals. And that costs lives.

This piece was first published in the Hill Times on online on December 20, 2013.

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