bout de papier, Vol. 8, No. 4 (1991) — Fall 1991 // Automne 1991, pp. 36–37
The issue of political rights for public servants has long been a matter of considerable debate resulting primarily from two competing philosophies. On the one hand, the tradition of a politically neutral and impartial public service is viewed as an essential component to the maintenance of professionalism as well as providing administrative stability and efficiency. On the other hand, participation in the political process is considered a basic right of citizenship in a free and democratic society. This article explores the legislative evolution to define the rights of public servants in their conduct of political activity.
The concept of a politically neutral public service is a central tenet of Canadian public administration which derives from the British parliamentary tradition. In accordance with this tradition, if public servants are to service governments of different political orientations equally and effectively, it is imperative that ministers and the public have every confidence that the individual views of public servants do not affect the discharge of their official duties. As a result, the acquired skills and expertise of a protessional public servant are transferable to successive ministers, regardless of their political perspective, thereby maintaining administrative stability and efficiency.
The creation of a politically neutral, “professional” public service began with the implementation of a system of recruitment and promotion based on the “merit principle”. The Civil Service Act of 1918 was the first attempt in Canadian legislation to embrace this concept. Prior to 1918, appointments to the public service largely were politically motivated and were considered to be a reward for faithful service to the governing party. Accordingly, with each change in government, the public service would change with it. Although such a system was an effective method of dispensing political rewards, it did not serve the broader interest of providing service to the public or effective administration of governmental responsibilities.
The Civil Service Act of 1918 required public servants to refrain from all partisan political activity other than the right to vote.
This limitation on political activity remained
36 bout de papier Vol. unchanged until the revised Civil Service Act of 1961 allowed public servants to participate in municipal elections and to be elected to municipal office. The Act, however, sought to reinforce the principal of political neutrality by forbidding public servants:
a) to engage in partisan work in connection with any election of a member of the House of Commons or a member of a provincial legislature; or, b) to contribute, receive, or in any way deal with any money for the funds of any political party.
The Public Service Employment Act (PSEA) of 1967 marked a significant departure from the belief that a politically neutral public service, which requires the denial of most political rights, is a necessary prerequisite to maintain an efficient and loyal public service. In this regard, the PSEA liberalized the traditional political restrictions by expanding the scope of acceptable political participation. In specific terms, the PSEA confirmed the right of public servants to attend political meetings and to contribute to the financial support of a candidate for municipal, provincial, or federal office. The legislation also provided public servants the opportunity to offer their own candidacy for political office subject to a determination by the Public Service Commission that in so doing, their usefulness as employees of the public service would not be impaired. If the Commission approved such applications, leave without pay would be granted for that stated purpose. A review of the applications submitted to the PSC since 1967, indicates that approximately 80 per cent have been approved.
Notwithstanding the legislative recognition toward expanded political participation, the PSEA continued to restrict most other forms of political activity by prohibiting deputy heads and public servants from working for or against any candidate for a provincial or federal election or election to a political party. In this way, the PSEA attempted to strike a balance between overt political activity which might compromise, or appear to compromise, the effective, politically impartial exercise of a public servant’s duties and the exercise of what can best described as that individual’s private political right.
The question as to whether such legislative restrictions on political activity are reasonable has been the subject of recent judicial review. In Osborne v. the Queen, the Federal Court of Canada (Trial Division) essentially affirmed the restrictions on political activity as contained in the PSEA. The Court, however, recognized that certain political activities, previously considered unacceptable, may be permissable provided that a public servant’s conduct was not perceived to compromise the ability to perform one’s duties in a politically impartial manner. The Court concluded that even if the PSEA infringed the rights of individual public servants under the Canadian Charter of Rights and Freedoms, in accordance with section I of the Charter, these are reasonable limits prescribed by law in a free and democratic society. In coming to this conclusion, the court referred to comments made by the Supreme Court of Canada in RE Fraser and the Public Staff Relations Board:
“A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves the acceptance of certain restrictions.”
In June 1988, the Federal Court of Appeal overturned the Trial Division’s decision in Osborne and declared section 32(1) (a) of the PSEA to be of no force or effect. The Court essentially concluded that section 32(1) (a), which prohibits public servants from engaging in work for or against a candidate or political party, was too vague, ambiguous and open to discretionary application. The Court viewed the lack of clearly defined prohibitions as an unreasonable limit to the Charter guarantees of freedom of association and expression. Although the Court recognized the convention of a politically neutral public service, it determined that an appropriate balance had not been achieved between this convention and guaranteed individual rights. In adopting this view, the Federal Court of Appeal relied on one of its previous judgments, Luscher v. Deputy Minister. In this decision, the Court stated:
“In my opinion, one of the first characteristics of a reasonable limit prescribed by law is that it should be expressed in terms sufficiently clear to permit a determination of where and what the limit is. A limit which is vague, ambiguous and uncertain, or subject to discretionary determination is, by that fact alone, an unreasonable limit…. While there can never be absolute certainty, a limitation of a guaranteed right must be such as to allow a high degree of predictability of the legal consequences.”
Following the Federal Court of Appeal decision, Osborne was referred to the Supreme Court of Canada which rendered a decision on June 6, 1991. The Supreme Court confirmed the judgment of the Federal Court of Appeal in that the prohibition against public servants working for or against a candidate or political party violated their Charter right of freedom of expression. The Court stated that the present legislative restriction went further than was necessary to achieve the objective of an impartial and loyal civil service. In this regard, the Court suggested that prohibitions on political activity should consider the nature of the duties performed by the public servant.
In the wake of the Supreme Court of Canada decision, no legislative prohibitions exist to define an acceptable political activity in the context of working for or against a candidate or political party. Legislative restrictions concerning the political rights of deputy ministers remain in force as well as requirements for public servants to seek permission to run for provincial or federal political office. Otherwise, public servants possess the right to be politically active until such time as the government introduces new legislation. Notwithstanding the current legislative void on this issue, it should be noted that existing government policies on conflict of interest may still be used to restrict certain types of political activity involving the public expression of political views or criticism of government policy.
It is not yet known whether the government intends to introduce new legislation to define and restrict political activities. In contemplation of such legislation, it may be useful to examine the British experience.
For the purpose of political participation, the British civil service is divided into three groups. The “politically free” group, consisting of industrial staff and non-office grades, which is free to take part in any political activity including offering their own candidacy for parliament. The “politically restricted” group, consisting of all staff above the executive officer level, which is not allowed to participate in national political activities but may apply for permission to engage in local political activities. The third is the “intermediate” group which consists of all other staff, who may apply to take part in national or local political activity with the exception of seeking candidacy for parliament. As a general rule, permission is granted where the political activity will not call into question the political impartiality of the civil service and where the activity will not conflict with official duties.
Although it is acknowledged that the British model may not be completely transferable to Canada, the notion of defining political activity by examining the nature of the work which is performed has gained considerable acceptance. The D’Avignon Report on Personnel Management and the Merit Principle examined the issue of political rights for public servants in 1979. The Committee concluded that the political participation of public servants should only be limited in exceptional circumstances where partisan political interests would compromise the reputation of the public service for impartiality or would damage the individual’s effectiveness as a public servant. Based on the British model, the Committee recommended that the Public Service of Canada be divided into three groups defining various levels of acceptable political participation. Since the release of the D’Avignon Report, there have been several attempts by individual members of Parliament to introduce legislation based on categories and levels of political participation. The most recent attempt was a private member’s bill introduced by David Daubney in 1988. To date, however, these attempts have not proven successful.
In conclusion, it is unclear whether the government intends to introduce new legislation governing political participation by public servants. Nonetheless, further attempts to restrict political participation likely will lead to considerable debate as to what constitutes an acceptable balance between the need to maintain a politically neutral public service while respecting the individual’s right for political expression.
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Originally published in bout de papier, Vol. 8, No. 4 (1991) — Fall 1991 // Automne 1991, pp. 36–37. Read the rest of this issue →
