Parliamentary Affairs Vol. 61 No. 1, 2008, 52–72
Advance Access Publication 14 November 2007
Legislative Control of Cabinet Appointments
to the Public Service: A Canadian Case-Study
in the Political Limits to Parliamentary Reform
BY DAVID POND
ABSTRACT
This paper analyses an important Canadian experiment in the legislative scrutiny
of political appointments by the executive. Since 1991, the Ontario Legislature’s
Standing Committee on Government Agencies has routinely interviewed cabinet
appointments to semi-independent agencies, which are a major policy instrument
at both federal and provincial levels in Canada. The Committee was assigned this
task on the assumption that partisan Members could agree on criteria for questioning witnesses about their qualifications, and that the government would be willing
to withdraw candidates exposed as inadequate. At the same time, the governing
party retained the discretion to make partisan appointments. An examination of
how the Committee conducts interviews reveals a tension between the Members’
role in holding the executive accountable, and their identities as partisan politicians. In large part, the Committee has become a forum for debates on the appropriate limits to patronage in appointments to public bodies.
A perennial theme in the analysis of the Westminster system of parliamentary democracy is the necessity for institutional reform to redress
the imbalance of power between the executive and legislature. Reform
is needed to ensure that the legislature can properly perform the scrutiny and oversight functions assigned to it under the norms of the
Westminster model. A popular focus of attention is the expansion of
legislative committee systems, which are regarded as an essential
element in an effective scrutiny regime. In many jurisdictions committees have been added and re-structured in order to strengthen the legislature’s capacity to debate ever increasing volumes of government
business, enhance the supervision of government departments, and to
enable legislators to initiate their own investigations into public policy.
For students of the Westminster model, effective legislative supervision must be extended to arm’s length agencies, boards or commissions (ABCs) or quangos in those regimes where these play a significant
role in governance, notable examples being Canada and Britain. ABCs
are an important policy instrument at both levels of the Canadian
Parliamentary Affairs Vol. 61 No. 1 # The Author [2007]. Published by Oxford University Press on behalf of the
Hansard Society for Parliamentary Government; all rights reserved. For permissions, please e-mail:
[email protected]
doi: 10.1093/pa/gsm052
Cabinet Appointments to the Public Service
53
federation, but particularly in the provinces, which are primarily
responsible for most categories of direct regulation and policy delivery.
In three Canadian legislatures, the House of Commons and the provincial legislatures of Nova Scotia and Ontario, legislative committees have
been empowered to review cabinet appointments to ABCs. In the House
of Commons, the standing committees may choose to summon cabinet
appointees to federal ABCs for interviews before them, but in fact exercise this power only sporadically. In Nova Scotia, one legislative committee formally votes on all appointments, but without interviewing the
candidates. This paper analyses the system in Ontario, which as the
largest Canadian province by most measures (12 million people and a
GDP of $540 billion in 2005), appropriately operates the largest ABC
sector, with approximately 625 agencies managed by 4,500 cabinet
appointees. In Ontario, a dedicated committee of the provincial
legislature, the Standing Committee on Government Agencies, interviewed over 950 cabinet appointments to positions on ABCs between
1991 and 2006. It can be argued therefore that it is the Ontario system
where the legislature is most deeply engaged in monitoring the
openness and transparency of the appointments process controlled by
the executive. Hence a study of the review process in Ontario should be
of interest not only to the Canadian student of parliamentary institutions but also to the British, as Prime Minister Gordon Brown has
indicated his government is prepared to permit parliamentary committee review of certain categories of public appointments.1
This article addresses a number of questions often raised in the literature on parliamentary reform. Scholars point out that Westminster-style
legislatures serve a number of functions or roles, which often conflict
in their daily performance. The innovation discussed in this paper
was designed as an oversight mechanism, reflecting parliament’s
historic role as the institution where the executive is held accountable
for its management of the administration. Implicit in the Standing
Committee’s terms of reference was the premise that the Members
(Member of Provincial Parliament, or MPP) would evaluate the ABC
appointees selected for interviews on their merits. The Committee
would thus monitor the cabinet’s exercise of the prerogative of appointment, similar to how the public accounts and estimates committees
scrutinise executive disbursements from the public purse. At the same
time, however, the terms of reference reserved to cabinet the discretion
to continue to appoint its own party supporters to positions on ABCs.
This brute fact of political reality ensured that the selection of appointees for interviews before the Committee would be influenced by partisan considerations, importing into the Committee’s operation the role
of the legislature as the arena for clashes between disciplined party caucuses competing in the ‘continuous election campaign’.2 The article
argues that the tension between these parliamentary functions has
shaped how the Standing Committee has discharged its mandate.
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Recent Canadian assessments of the performance of parliamentary
government note the lack of agreed upon indicators for measuring legislative influence on the executive.3 What criteria should be employed
to determine whether the legislature is succeeding at holding the executive accountable? The percentage of government bills submitted to
committee hearings? The proportion of debating time in the House
consumed by opposition debates? The number of occasions when government backbenchers defy the whip in order to join with opposition
Members in voting for a critical report by a parliamentary officer such
as the auditor-general? The Standing Committee on Government
Agencies offers an object lesson in the difficulties of evaluating the
success of reforms designed to enhance the capacity of the legislature
to hold the executive to account. In the absence of a veto over cabinet
appointments, the Committee lacks any institutional mechanism for
compelling the cabinet to engage with the interviewing process, other
than the negative media publicity generated by the Committee’s public
exposure of an egregious patronage appointment.
Finally, the role assigned to the Standing Committee on Government
Agencies can be treated as a case-study in the study of policy transfer.
A standard thesis in this literature is that the successful adoption of
policies from another jurisdiction may hinge on whether prior assessment has properly absorbed the lessons to be learned from observing
how the policy interacts with its original setting. An important influence on the design of the review process vested in the Standing
Committee on Government Agencies was firsthand observation of the
US Senate confirmation process for presidential nominees. However,
this is only one feature in a complex institutional framework rooted in
the separation-of-powers system. By failing to take this into account,
the architects of the Ontario system may have misunderstood the likely
impact of adapting US-style legislative scrutiny to the parliamentary
context.
Background
The procedural amendments analysed in this paper were introduced by
the first New Democratic Party (NDP) government in Ontario history,
shortly after it won the September 1990 election. This initiative closely
followed the recommendations of an all-party 1986 legislative committee report, produced in an era of reform in Ontario politics. Hence
some background is necessary. Between 1943 and 1985, the province
was governed by a middle-of-the-road Conservative administration.
Until the 1975 election, when the Conservatives lost their majority,
the provincial legislature was effectively moribund, a proverbial
rubber-stamp for the executive. During the 1975–1977 and 1977–
1981 minority parliaments, the two opposition parties, the Liberals
and the NDP, successfully demanded a host of legislative and procedural reforms which together modestly constrained the cabinet’s
Cabinet Appointments to the Public Service
55
domination of the legislature. Question Period was institutionalised in
the legislature; backbenchers received more staff resources and infrastructure support; a new convention of appointing an opposition
Member as Deputy Speaker was recognised; the legislature assumed
greater responsibility for its own internal administration; and the government agreed to televise legislative proceedings. A further round of
procedural innovations followed the 1985 election, when a minority
Liberal government, supported in the legislature by the NDP, embraced
the cause of parliamentary reform. Sessions were lengthened; a fullfledged committee system was implemented (as outlined below); backbenchers as well as the opposition parties were guaranteed more debating time on the floor of the House; and the legislature acquired its
own non-partisan civil service. The standard text on this period
described the reforms of these decades as moving the legislature
towards becoming a more ‘transformative’ institution: while the legislature did not wholly shed its status as executive-dominated, nevertheless it became a central democratic institution in provincial political
life, wielding an enhanced capacity for performing the standard
Westminster parliamentary functions of legitimation, representation
and executive oversight.4
One driver of these reforms was all-party legislative committee
reports, which often formed the starting point for negotiations among
the three parties over the acceptable limits of innovation. An important
goal of the reformist 1985–1987 Liberal minority government was to
curb the patronage excesses associated with the post-war Conservative
dynasty, which had been notorious for the ruthless efficiency with
which it staffed the institutions of the provincial state with party loyalists. Accordingly, under the terms of the Liberal-NDP pact which
elevated the Liberals into office in 1985, the Legislature’s Standing
Committee on Procedural Affairs was directed to make recommendations on how to replace the Conservative ‘spoils system with a merit
system’5 in cabinet appointments to ABCs.
The Procedural Affairs Committee began by noting that this assignment raised ‘broader issues about the nature of the democratic process
in Ontario’.6 It accepted that under responsible government, appointments should continue to be made by the governing party. However,
the ‘principles of democratic pluralism’7 directed that ABC decisionmakers should be representative of the society they served. Ontario’s
rapidly changing demographic make-up included various ethnic groups
egregiously under-represented in the ABC sector. For this reason, political patronage as the prevailing influence in appointments must be
constrained. The Committee outlined reforms designed to enable the
executive to open up the appointments process, including the advertising of all open positions on ABCs, the creation of a new central agency
to co-ordinate appointments by cabinet, and the development of new
criteria for selecting appointees.
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In formulating a new oversight role for the legislature in this
process, the Committee turned to the US model for inspiration, visiting
three state legislatures as well as Washington, DC to learn about
Congressional scrutiny of presidential appointments. However, the
Committee’s treatment of the US system and its relevance in the parliamentary context was strictly confined within parameters imposed by
the traditional oversight framework of a Westminster-style legislature.
The Committee limited itself to the narrow issue of whether a legislative
oversight committee with the power to interview executive appointees
should be vested with a US-style veto. The Committee concluded that
while the US model demonstrated that legislative review of appointments
had merit, in the Westminster system the purpose of legislative review
was to scrutinise the performance of the executive in fulfilling the goals
of a more open appointments process—not to usurp the Crown’s prerogative right of appointment. Therefore, a US-style legislative veto over
executive appointments was incompatible with cabinet government.8
Having answered this question of a possible veto in the negative, no
further discussion of the US legislative system was merited.
This report was adopted by the NDP government elected in
September 1990 (with minor variations, which where relevant will be
noted below). New Premier Bob Rae told the media that the NDP
wanted ‘to appoint people of ability and talent without any regard to
their previous political affiliation. . . The key thing is public confidence,
public trust. The public has to have the sense that the system [of
appointments] is on the up-and-up’ (Toronto Star, 15 September 1990,
3 October 1990). In a subsequent statement in the Legislature, he
declared that the object of reform was ‘to strip away the secrecy and
mystique which have always surrounded government appointments’.9
To this end, a list of all positions on provincial ABCs would be compiled and distributed to public libraries across the province. The list
would contain information on the requisite qualifications for the positions, how much they paid and when they came open. An advertising
campaign was to be launched to alert the public about the availability
of appointments. Finally, the Standing Orders of the Legislative
Assembly would be amended to empower a legislative committee to
review the government’s selections for the positions, but without a
veto. A central agency, the Public Appointments Secretariat, was
created to co-ordinate appointments and ensure that the government’s
employment equity goals were implemented.
It should be evident that within this framework the parliamentary
institution primarily responsible for introducing transparency and
accountability to the appointments process was the executive, not the
legislature. Strong executive direction was necessary to ensure that a
more representative sample of Ontarians was appointed to positions on
ABCs. The purpose of legislative scrutiny was to ensure the ‘fairness
and openness’10 of the process of appointment managed by the
Cabinet Appointments to the Public Service
57
executive. It can be argued that the centralising thrust of the NDP
reforms in fact reduced the existing influence customarily exercised by
one important group of Members in the Legislature—government
backbenchers. During the post-WWII decades of Conservative dominance, government MPPs had enjoyed some degree of backroom influence over how the Premier’s Office doled out the rewards of patronage,
including the gift of an ABC appointment. But under the new regime
control over appointments was vested in the Public Appointments
Secretariat, the new central agency reporting directly to the Premier’s
Office. During their years in office, New Democrat MPPs on the
Standing Committee on Government Agencies often complained about
their lack of influence over their own government’s appointments.
Of course, taken in context, it would be churlish not to acknowledge
that the NDP government’s reforms were a genuine breakthrough in the
advancement of democratic administration in Ontario, and indeed, in
Canada. Nevertheless, in hindsight the 1986 committee study on which
these reforms were based can be seen as a missed opportunity. The
Procedural Affairs Committee’s assessment of the obstacles to importing features of the congressional model into Canada turned narrowly
on its analysis of a legislative veto, one of the more salient institutional
differences between the congressional and parliamentary systems. With
this as its focus, the Committee and the NDP failed to contemplate the
implications of the broader congressional system of oversight, of which
the Senatorial veto over presidential nominations is only one element.
Any such survey would have compelled a Canadian audience to confront the limitations to reform inherent in an executive-centred
Westminster legislature dominated by disciplined party caucuses. In the
absence of this kind of sober appraisal, the power to interview executive
appointees to positions on ABCs was grafted onto the Legislature’s
committee system, with no apparent consideration of how the existing
pattern of political relationships within the Legislature would likely
shape its exercise.
One final consideration should be noted, before turning to the analysis of the new oversight process. It is true that, at the outset of the
1990s, following the reforms of the previous decade, the Ontario legislature had all the trappings of a mature committee system (arguably
rivaling that of the Canadian House of Commons in its scope and
responsibilities): the full range of government operations and activities
were monitored by committees, backed by non-partisan research staff;
committee chairs were rewarded with extra pay; the opposition caucuses were guaranteed a share of the chair positions; the committees
had the procedural freedom to pursue their own investigations as well
as scrutinise government bills regularly referred to them after second
reading; and finally, active service on committees had been incorporated into the recognised job description for backbenchers. However, it
did not follow that committee service in the legislature was widely
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embraced as an alternate career path to pursuit of a seat in cabinet, a
change in the parliamentary work culture seen by many as the desideratum of effective legislative scrutiny, both in Canada as well as at
Westminster. Rigidly enforced party discipline, the relatively small size
of the Ontario legislature (though still the largest provincial Canadian
legislature for most of the 1990s, with 130 MPPs), and a competitive
party system, all served to reinforce the prospect of a cabinet position
as the prime and reasonably achievable goal for most backbenchers.
The decision by an economy-minded Conservative government to
reduce the size of the Legislature from 130 to 103 MPPs before the
1999 election (subsequently increased to 107 before the 2007 election)
reinforced the subordinate status of the Legislature’s committee system.
As a result of this radical downsizing, in each of the two majority
governments elected since the 1999 election the cabinet plus government backbenchers serving as parliamentary assistants to ministers has
constituted over 70% of the government caucus, as well as close to
50% of the entire Legislature. The most obvious consequence is that
the government caucus has simply not had enough bodies to operate a
full-fledged committee system: after the 1999 election the number of
committees was dropped from 11 to eight, and only the Standing
Committees on Government Agencies and Public Accounts still manage
in most sessions to meet year round. But more importantly, the significantly enhanced odds of gaining a seat in cabinet which followed
mathematically from a reduction in the total number of seats simply
reinforced the incentive to submit to the party line, particularly on the
government side of the Legislature, both in committees as well as on
the floor of the House.
The oversight process summarised
The procedure under which the Standing Committee on Government
Agencies interviews cabinet appointees is summarised as follows.11
When the Legislature is in session the Premier’s Office releases lists
(formally known as ‘certificates of appointment’) of intended appointments to ABCs on Thursday, following the regular Wednesday cabinet
meeting, which are automatically referred to the sub-committee of the
Standing Committee.12 Appointees to be called for interviews are
selected by the three party caucuses represented on the sub-committee.
(It is important to note that in the Ontario Legislature the caucuses
enjoy equal representation on all sub-committees, while their representation on the full committees themselves must reflect their standing in
the House, ensuring that a majority government can retain control.)13
In practice, a week is allotted to this stage in the sub-committee. Once
selections are made, biographical material on the appointees compiled
by the government’s Public Appointments Secretariat is packaged
together with briefing notes prepared by the non-partisan Research
Officer assigned to the Committee by the Legislative Library, and sent
Cabinet Appointments to the Public Service
59
to all Committee members. Another week is allotted to this stage. The
selected appointees appear before the Committee the next Wednesday.
The Committee must meet within 30 days of a certificate’s release in
order to conduct a review of appointees selected from it.
The Committee is free to interview as many or as few appointees as it
pleases, at any length. After some early experiments, a half-hour was
settled upon as the standard time-period. At the close of the interview,
the Committee can ‘state its reasons’ as to why it concurs or does not
with the appointment; this presumes that the Committee as a corporate
entity can agree on them. In fact, the Committee’s reports to the House
simply consist of a sentence declaring whether it concurs in the appointment or not. These reports are not debated on the floor of the House
but deemed to be automatically adopted. While this disconnect between
the Committee’s work and House business might appear to discount
the significance of the Committee’s mandate for the Legislature as a
whole, it follows logically from the legislative oversight model, which
holds that parliamentarians from different parties are more likely to
work co-operatively away from glare and high tension of the Chamber.
Once the Committee’s report is tabled the Order-in-Council formally
appointing the individual interviewed is forwarded to the LieutenantGovernor for signature.
Putting aside the absence of a veto power, the most important impediment to effective legislative scrutiny posed by these rules was the
retention by cabinet of total discretion over who received an appointment. Nothing in the new rules prevented the governing party from
continuing to favour its political supporters with positions—and
indeed, it soon became apparent to the opposition parties that despite
its commitment to reform, the NDP government did intend to make
some significant partisan appointments. NDP Members and officials
responded to opposition attacks on the alleged flaws in the review
process with a defence of the new rules which purported to maintain
the integrity of the reform as a scrutiny mechanism, while acknowledging the continuing reality of party control of government.
This defence rested on the distinction ‘between a process that is open
and a process that is non-partisan’, in the words of the government
whip on the Committee.14 The cabinet would continue to make
appointments at its discretion, but now under the glare of public scrutiny. The prospect of negative media coverage would serve as a check
discouraging the appointment of egregiously weak candidates, whose
only merit was a connection with the governing party. NDP MPPs
assured the opposition that if the Committee ever voted not to concur
in such an appointment the Premier would be compelled to re-think
the selection, and in all likelihood withdraw it. It followed that opposition complaints about the Committee’s lack of a formal veto (and to
other institutional barriers to full legislative participation in the selection of appointees, such as not being able to view the applications of
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unsuccessful applicants) were irrelevant, as the Committee already
enjoyed a de facto veto over weak appointments.
This presumed that the government Members on the Committee
were able to exercise their independent judgement about the merits of
the appointees appearing before them. For the Committee to vote not
to concur in an appointment, at least some of the NDP majority
government Members had to join with their opposition colleagues to
vote against. But here, inevitably, the new process ran up against
the exigencies of party government. For of course on the government
side of the Committee the votes were whipped.15 NDP government
Members were well aware of how the credibility of the review process
suffered from the perception that their votes were whipped, and invariably insisted on the contrary when challenged by the opposition.16
The opposition caucuses established early that they were prepared
to vote in favour of appointees who had impressed them during the
interviews—regardless of whether they had been revealed as governing
party supporters. On these occasions opposition MPPs pointedly noted
that such expressions of bipartisan support demonstrated their good
faith in trying to make the new process work.
The politics of legislative scrutiny
Before turning to a detailed analysis of the Standing Committee on
Government Agencies at work, it is important to stress the broad latitude the party caucuses enjoy in selecting appointees for interviews.
The Standing Order is silent on the criteria the Committee should
employ when selecting appointees, making no distinctions among categories of ABC appointments. In this respect, the NDP ignored the
1986 Procedural Affairs Committee report, which had recommended
that legislative review be limited to certain categories of high-profile
ABCs, such as those directly involved in policy-making, subject to ministerial control, funded from the public purse, or engaging in activities
visibly affecting Ontarian society. The Procedural Affairs Committee
had recognised that not all ABCs were created equal. For instance,
when the current Liberal government assumed office in October 2003,
over 95% of the 4,425 ABC positions then in existence were part-time
positions. Only 30 of the 625 ABCs in existence at that point were
managed by full-time chairs.
Nor did the Standing Order offer any direction as to how Committee
Members should question appointees to determine whether they were
qualified for their positions. According to the legislative scrutiny
model, the questioning of appointees should be limited to queries
strictly related to the business of evaluating their qualifications for
their positions. This point was often advanced by government backbenchers when the opposition caucuses selected known government
partisans for interviews, and then used up their time for questioning
by pressing them to disclose details about their political activities.
Cabinet Appointments to the Public Service
61
However, once the Standing Committee commenced operations under
the new Standing Order, it could legitimately assert the broad and
privileged investigatory powers traditionally exercised by legislative
committees in the Westminster model. As Norton has pointed out, parliamentary procedure is an independent variable constraining the exercise of state power, despite the control a majority government exercises
over legislative proceedings.17 The NDP could not afford to intervene
to prevent the politicising of the interviewing process without undermining the Standing Committee’s credibility as an independent forum
for scrutinising government appointments. Yet the opposition’s determination to interrogate appointees about their political connections
ensured that the party dynamic prevailing in the legislative chamber
would also dominate the operation of the Standing Committee.
The Standing Committee on Government Agencies at work
We can now turn to a statistical analysis of the appointees reviewed by
the Ontario Legislature’s Standing Committee on Government Agencies
since 1991.
Table 1 shows the partisanship of the government appointees interviewed by the Committee, insofar as it was possible for MPPs to elicit
this information by questioning them.18
The Committee cannot hope to interview more than a fraction of the
total number of new appointments a government makes during a
typical term in office. Only in the 1999–2003 legislature did the
Committee interview as many as 10% of all new appointments. This
raises the question about the criteria employed to select what must
necessarily be an unrepresentative sample of appointees for interviews.
The table suggests a primary consideration, the likelihood that an
appointee is a supporter of the governing party. This information is
gleaned either from the biographical information submitted to the
Committee by the Public Appointments Secretariat or by party caucus
researchers after a certificate or list of new appointees is tabled in the
House. It is important to record the extent to which the figures in the
table represent the work of the opposition. Only under the NDP did
the government caucus participate significantly in selecting appointees
for interviews: the Conservative government caucus withdrew from
1. Partisanship of appointees interviewed by the Committee
Gov’t
NDP (1990– 1995)
Cons. (1995–1999)
Cons. (1999–2003)
Lib. (2003–2006)
No. of
appointees
reviewed
Declared
gov’t
partisan
Declared
non– partisan
366
177
250
168
42 (11.4%)
89 (50.2%)
146 (58.4%)
71 (42.2%)
42 (11.4%)
18 (10.1%)
29 (11.6%)
28 (16.6%)
Not asked
Other
264 (72.1%) 18 (4.9%)
66 (37.2%) 2 (1.1%)
71 (28.4%) 4 (1.6%)
45 (26.7%) 24 (14.2%)
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selecting candidates soon after the legislature resumed following the
party’s victory in the 1995 election, a stance maintained by the current
Liberal government elected in 2003. Not surprisingly, NDP government MPPs usually selected non-partisan appointees in order to showcase the NDP’s commitment to the merit principle in appointments. Of
the 89 appointees interviewed by the Committee between 1990 and
1995 who had been selected by the NDP government caucus, only
5.6% were declared partisans and 12.3% were declared non-partisans.
Once this sub-total is removed from the figures shown in Table 1, the
percentage of NDP appointees who were declared government supporters increases modestly to 13.3%. Abstracted the government selections, Table 1 measures the opposition’s success rate in identifying
patronage appointments.
Given the small size of the samples, it cannot be argued with certainty that the table demonstrates the NDP government’s superior commitment to the merit principle compared to the other parties. On the
other hand, the failure of the opposition to detect patronage appointments even when equipped with the procedural tools to search for
them does provide evidence supporting such a claim, which was made
regularly by NDP government backbenchers on the Committee during
the party’s term in office. In the Committee’s first three months under
the NDP, 80% of the appointees appearing before the Committee were
asked to discuss their political affiliation. Over the first six months, the
rate was still high, at 64%. However, after this point the rate steadily
fell, never exceeding 30% in any subsequent six-month period as long
as the NDP formed the government. Over 70% of all NDP appointees
interviewed were not asked about their political views because in the
government’s early years, so few of those who were asked identified
themselves as supporters of the government. The opposite has been
true under the Conservative and Liberal governments, as the table indicates. Continuing success at identifying governing party supporters
encourages opposition Members to keep on asking. Hence the steady
decline in the percentage of appointees not asked to reveal their partisan affiliation. This drop illustrates the increasingly partisan spirit in
which the opposition parties have set the Committee’s agenda. As a
veteran New Democrat crudely described the Committee’s role under
the Conservative government, ‘Our job here, among other things, is to
find out all the Tory hacks that the government is appointing’.19
It will be recalled that the 1986 Procedural Affairs Committee report
which laid the groundwork for the new rules had recommended that
the criteria to be employed in selecting an appointee for an interview
should be related to the substantive importance of the position in question. Tables 2 and 3 list the top ten categories of appointments
reviewed by the Standing Committee during the Conservative government’s two terms in office (1995–2003), a period long enough to yield
a sample worth closer examination. For comparative purposes, Table 4
Cabinet Appointments to the Public Service
63
2. Most Conservative appointees reviewed, by ABC: top ten in the 1995–1999 legislature
ABC
No.
Declared gov’t
partisan
Declared
non-partisan
Not asked Other
Police Services Bds.
District Health Councils
Niagara Escarpment
Comm.
Social Assistance Rev. Bd.
Local housing authorities
Educ. Improvement Comm.
Ont. Casino Corp.
Health colleges
Ont. Parole Bd.
Ont. Trillium Foundation
27
10
10
12
7
4
3
1
1
12
2
5
0
0
0
6
6
6
6
6
5
5
5
5
2
3
4
3
5
1
0
1
0
0
0
0
0
1
2
3
2
2
0
0
0
1
0
0
0
0
shows the top five categories selected under the current Liberal government to date (the Liberals’ three years in office being insufficient to
justify displaying the top ten). The tables illustrate the success of opposition caucuses in identifying patronage appointments, broken down by
category of appointment.
The two most popular categories of appointments selected for interviews under the Conservatives were appointments to local police services boards (55 in total) and to professional health colleges (32). They
are also prominent choices under the current Liberal government. In
these cases and in some of the other popular selections shown the
Standing Committee can only realistically strive to review a small proportion of the total appointments made. For example, the Conservative
government in total made 493 appointments to police services boards
and 342 to health colleges.20 It follows that the appointees interviewed
in these categories cannot be regarded as a representative sample of all
appointees in their respective categories.
To be sure, municipal policing and the regulation of heath care professionals are significant areas of provincial government activity in
3. Most Conservative appointees reviewed, by ABC: top ten in the 1999–2003 legislature
ABC
No. Declared Gov’t
partisan
Police Services Bds.
28
Health colleges
26
Early Years Steering Cttees
14
District Health Councils
12
Social Benefits Tribunala
11
Cancer Care Ontario
9
Ont. Film Review Bd.
8
Ont. Rental Housing Tribunal
8
Env’tal Review Tribunal
6
Seven tied with five each
N/a
a
21
19
6
3
11
3
3
4
5
N/a
The former Social Assistance Review Board.
Declared
non-partisan
Not asked
Other
2
1
2
4
0
1
2
1
1
N/a
5
4
4
5
0
5
2
3
0
N/a
0
0
0
0
0
0
1
0
0
N/a
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4. Most Liberal appointees reviewed, by ABC: top five in the 2003–2006 legislature
ABC
No.
Declared
gov’t partisan
Declared
non-partisan
Not asked
Other
LHINsa
Social Benefits
Tribunal
Ont. Rental
Housing Tribunal
Health colleges
Police Services Bds.
15
11
5
6
5
2
3
1
2
2
10
5
1
0
4
9
9
8
7
0
1
1
1
0
0
a
Local Health Integrated Networks (regional health planning authorities, replacing District
Health Councils).
which MPPs can be expected to show a lively interest, both from a
policy perspective as well as constituency service. However, the opposition parties also recognise that appointments to these agencies offer
ample opportunities for a government seeking to reward its supporters
with public sector remuneration. On both categories of agencies the
provincial positions do not require any specialised skills or knowledge,
while offering an honorarium for part-time work. Under the Police
Services Act, the province appoints members to the 158 boards to represent the general public’s interest in policing, and not for any professional expertise. The boards are strictly limited in the extent to
which they can interfere with the police chief’s control over day-to-day
policing. Similarly, within the framework of the Regulated Health
Professions Act, the Minister of Health does not seek out health care
experts to fill the non-professional positions on the councils of the 22
colleges governing the regulated health professions, but instead ordinary members of the public, with no particular axe to grind but simply
a genuine interest in health care and a willingness to serve. As a result,
the governing party enjoys considerable discretion in deciding how the
positions available on these agencies will be filled.
The figures also illustrate the point made above, that success in
identifying partisan appointments encourages the opposition to keep
asking. As the number of police services board appointees who were
asked about their political backgrounds increased during the
Conservative government’s second term, the proportion revealed to be
partisan supporters rose. The sharp increase in the percentage of all
health colleges appointments reviewed by the Committee (from 3% of
the total appointed in 1995–1999, to 18% in 1999–2003), suggests
that in their quest for evidence of patronage, the opposition parties
realised that with health colleges appointments, they had as it were
stumbled upon a gold mine. A similar trend is evident under the
current Liberal government, as Table 4 suggests.
Cabinet Appointments to the Public Service
65
Also figuring prominently in the tables above are appointments to
quasi-judicial tribunals. Because many of these have a limited membership it is possible for the Committee to interview a significant share of
the total appointments made to a tribunal, depending on the number
of positions the government is required to fill in a given session, in
relation to the proportion the opposition caucuses choose to bring
before the Committee. This combination prevailed for a handful of
important tribunals under the Conservative government. In the 1999–
2003 legislature, 71% of all Conservative government appointments to
the Environmental Review Tribunal (five out of a total of seven) were
identified by the Standing Committee as governing party supporters, as
well as 50% of all appointments to the Social Benefits Tribunal (11
out of 22); in the 1995–1999 legislature, 25% of all appointments to
the Niagara Escarpment Commission were disclosed as Conservatives
(four out of 16). This trend introduces the real possibility that if the
Standing Committee were able to consistently interview more representative samples of appointments, statistically significant patterns of
patronage might well be revealed.
Within the parameters set by their caucuses’ selection strategies the
opposition Members regularly serving on the Committee exercise considerable freedom in the choices made for interviews. This illustrates
an observation made some years ago by James Mallory in a perceptive
analysis of parliamentary reform in the Canadian House of Commons,
that opposition party leaders cannot effectively orchestrate the performance of their backbenchers on a day-to-day basis. This is not
simply because opposition party leaders have few tools for enforcing
party discipline. More prosaically, the pressure of events and the complexity of legislative business militate against the successful imposition
of topdown discipline.21 While the opposition Members formally
assigned to the Committee routinely circulate the weekly lists of new
appointees among their caucus colleagues and staff, few have the time
to carefully sift through them before the next Committee meeting. (It
must be remembered that the lists often contain hundreds of names.)
Consequently, the MPPs regularly serving on the Committee and in
particular, on the sub-committee, have some latitude to pursue their
own agendas through their selections for interviews.
The police services board appointees summoned for interviews are
almost invariably those joining the boards located in opposition
Members’ constituencies. Similarly with district health council and
local housing authority appointees asked to appear before the
Committee. Appointees to Boards managing politically salient provincial institutions in opposition Members’ ridings are often singled out, a
good example being the Parole Board ( prisons). The Crown corporation running the provincial gambling industry was an object of interest to Committee Members throughout the Conservative period, as the
government considered expanding the number of casinos operating
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around the province (Ontario Casino Corporation); as was the ABC in
charge of allocating gambling and lottery revenues to community
groups and service organisations locally based in Members’ ridings
(Ontario Trillium Foundation).
Defeated political candidates for the government party receiving the
consolation prize of an appointment after losing to opposition
Members sitting on the Committee are often summoned to endure a
performance at the witness table before taking up their new position. It
should not be assumed that such interviews are always sharply adversarial. Once some preliminary skirmishing is out of the way many such
interviews proceed amicably. Such witnesses are often personally
known to the Members who selected them, in their status as friendly
rival, local notable, or even prior collaborator on a local community
project.
Close observation of the Committee in action suggests other reasons
for why some witnesses are asked about their politics and others were
not, though it is impossible to pin down a precise pattern. Appointees
accepting a position on an ABC directly from the private sector or
private life are more likely to be asked than appointees already serving
on an ABC and who are now being promoted to the position of chair;
similarly, for career civil servants accepting a time-limited secondment
to an ABC. Private sector professionals appointed explicitly because of
their specialised expertise (for example, corporate lawyers accepting a
position on the Ontario Securities Commission; psychiatrists agreeing
to serve on the Consent and Capacity Review Board, a mental health
tribunal) are often exempted from the standard query. On occasion an
appointee will so impress opposition Members with his or her sincerity
as a witness that the question of political allegiance is tacitly deemed
irrelevant.
It is also the case that many interviews are simply unsuccessful—the
witness is unremarkable, or at least unobjectionable; the Committee
quickly loses interest; the questions dry up; eventually a Member might
even wonder out loud why the individual was selected for an interview
in the first place. Sometimes the opposition simply makes bad choices
for interviews. As noted above, the partisanship of appointees, or the
likelihood of discovering it upon further inquiry, is not always evident
from the brief biographical summaries attached to the names of the
appointees listed in the certificates of appointments circulated by the
Public Appointments Secretariat. This is the information on the basis
of which the opposition caucuses must make their selections for interviews. It is only after the caucuses have committed themselves that the
Secretariat releases the full resumés of the appointees so chosen. Thus,
many unsatisfactory interviews are the result of bad guesses by opposition caucus researchers asked to advise on which candidates to select.
It should also be noted that Members do not always have the time to
properly prepare for the interviews: this is particularly the case for
Cabinet Appointments to the Public Service
67
Members attending Committee meetings as last-minute substitutions—
the bane of effective committee work in many Westminster-style
legislatures.
Discussion
According to its NDP architects, the Standing Committee on
Government Agencies had been vested with the only tool it needed to
exercise meaningful influence over the executive, which was the power
of negative publicity. This presumed that it was possible for a partisan
body to reach a consensus on what constituted merit in a government
appointment. The Committee was delegated the authority to establish
its own criteria for selecting and evaluating appointees for interviews.
As we have seen, in practice the Committee’s primary function is to
detect patronage appointments. The government has acquiesced in this
evolution of the Committee’s role by effectively opting out of the
process. As noted above, at the outset NDP government backbenchers
took their turn selecting appointees (though never to the same extent
as the opposition parties) and questioning them before the Committee,
as a strategy for bolstering the government’s formal position that
merit, and not merely partisanship, was the appropriate yardstick the
Committee should employ in reviewing appointees. The Conservative
government caucus in office after 1995 did not only concede to the
opposition full control over the selection of witnesses, but gradually
withdrew from active participation in the Committee’s interviews save
for the formal votes at the end of the meetings. During the 1999–2003
legislature, Conservative government MPPs did not ask a single
question of 46% of all appointees interviewed. Once this pattern
became evident, opposition Members complained about how the
Conservatives’ lack of interest in actively participating damaged the
credibility of the review process.22 As one New Democrat Member put
it, ‘what is it that the government feels is the role of this committee if
they [i.e. the government Members] never ask a question[?]’.23 The
response of the government whip on the Committee was that as far as
the Conservatives were concerned, the time available for interviews
existed for the benefit of the opposition.24 This continues under the
current Liberal government. All appointees are selected by the opposition caucuses and for the most part, interviewed by them. For example,
in the Committee’s most recent 18 months of operation (June 2005–
December 2006), Liberal government backbenchers posed questions
(however anodyne) to only 21% of the witnesses.
Consequently, the Committee has been institutionalised as an opposition forum. A veteran NDP Member recently described the
Committee as an ‘opposition committee’, and immediately added that
as such, it served as an ‘oversight committee’ of the legislature.25
However, the oversight role of the Westminster-style legislature is conventionally depicted as involving backbenchers on both sides of the
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House working together to scrutinise the executive. It is difficult to
maintain any pretence that a committee is engaging in a credible exercise in oversight when the government majority makes it clear it has no
interest in participating in the process other than for the purposes of
maintaining quorum and carrying the votes at the conclusion of
meetings.
The Ontario system was devised after close observation of US legislatures in action. The American is the political system with which
Canadian politicians are most familiar, and on the issue of legislative
power appears to offer the sharpest contrast to the parliamentary. For
Canadian observers US Senate hearings on presidential nominations are
a visible and dramatic manifestation of the power exercised by legislators under the terms of the separation-of-powers model. However,
this is only one element in a complex relationship with the executive,
rooted in the constitutional independence of the legislature, which
includes a panoply of oversight mechanisms such as congressional
adjustments to agency mandates, public hearings called at legislators’
discretion into the performance of agencies, and an institutional
capacity to bargain with the executive over agency design.
Bestowing on a committee of the legislature an interviewing power
under the influence of the US model is not of course sufficient to
remedy the structural imbalance of power between the executive and
legislature in the Westminster model. But it should also be noted that
even if, in the interests of more closely assimilating the review process
to the American prototype, the Standing Committee had been granted
a veto (which is exercised by the reviewing committee in the Nova
Scotia legislature) the committee power to interview appointees fits
awkwardly within the parliamentary system’s traditional scrutiny and
oversight framework. The hallmark of responsible government is the
accountability of public officials to the legislature. But the appointees
summoned for interviews by the Standing Committee do not testify
there in the capacity of public officials, as they have not yet taken up
their duties. They do not speak on behalf of the ABC to which they not
yet been formally appointed, or the minister responsible for the ABC in
the legislature. They have no insights to offer Members into the inner
workings of the administration or of policy, which might better equip
them for challenging ministers in the House. The appointees cannot be
held accountable for anything because when they appear before the
Committee they are still private citizens. It is worth noting that preserving ministerial accountability for appointments was regularly cited by
the Blair government as one reason for rejecting proposals for parliamentary scrutiny of appointees at Westminster.26 A logical response is
that committees should have the power to recall appointees to discuss
their performance once they have exercised authority in the service of
the Crown and have a record in office to discuss. The standing committees of the Canadian House of Commons have the power to interview
Cabinet Appointments to the Public Service
69
re-appointed ABC members. But this brings the argument back to the
essential reality of how authority is unevenly distributed within the
Westminster model. No wonder then, that opposition Members on
the Ontario Committee devote most of their time to extracting politically useful information from witnesses, such as whether they may owe
their appointment to a connection to the governing party, which can
be put to immediate use in the parliamentary environment as the
Members encounter it.
Conclusion
In a recent discussion of the challenges inherent in assessing performance in parliamentary government, Atkinson and Docherty suggest that
‘success’ can be defined as bringing honour to parliament, achieved
when a government leaves office with the public having greater confidence in the integrity of the political system than when it was first
elected. In order to accomplish success, ministers must show they are
willing to be held accountable to the legislature.27
In this light, it should be recalled that the purpose of the parliamentary reforms discussed in this paper was to bolster the public’s
confidence in the integrity of the processes employed to select decisionmakers for positions on ABCs. This was to be achieved not by curbing
executive control over the selections, but instead by extending the ideal
of government by debate into the core parliamentary responsibility of
executive oversight.28 A legislative committee was provided with the
tools needed to expose patronage appointments to ABCs and require
government backbenchers to defend them. Over the time-period
covered by this paper, ministers have indeed never hesitated to accept
responsibility for rewarding party loyalists when challenged in the
House by opposition Members armed with the intelligence gleaned
from interviews in the Standing Committee.29 It would appear, then,
that the NDP initiative, while not guaranteeing a successful level of parliamentary performance as defined by Atkinson and Docherty, at least
set in place incentives encouraging cabinet to meet a higher standard of
behaviour in office.
However, it is important to recognise the limitations of what ministers are being asked to accept responsibility for within this accountability framework. The opposition is limited to holding ministers to
account for the information they are able to extract from witnesses, preeminently about their political loyalties. What the opposition cannot
determine is whether patronage in hiring fatally compromises the merit
principle. This would require a level of institutional access to the governmental decision-making process which under the Westminster model
is the exclusive preserve of ministers.
The Standing Committee on Government Agencies at work reveals
an ongoing dialogue within the political class over the role patronage
should be permitted to play in contemporary governance. When
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defending appointments on the government side of the Committee or
attacking them in opposition, the parties challenge each other to set
out positions on patronage they are prepared to defend publicly.
A view consistently expressed over the years in the Committee by all
three caucuses both in government and in opposition is that patronage
continues to be an acceptable manifestation of party in government, as
long as appointees with political connections also exhibit the qualifications in fact required by the position. In the words of one veteran MPP
and former minister, ‘if. . .patronage is not conjoined with merit, then
it becomes a real evil’.30 It is on this basis that opposition Members—
including New Democrats who had previously served in the government which had introduced the new appointments process—regularly
vote in support of appointees even after they have disclosed their
partisan support for the governing party.
The comparative student might well conclude from this analysis that
the inability of the Ontario review process to transcend traditional partisan exchanges over patronage reflects a weakness in design. It could
be argued that while providing for a legislative role in questioning
appointees, the NDP government failed to exercise the leadership
necessary to ensure that Committee hearings could become genuine
exercises in the scrutiny of cabinet appointments, by prioritising
categories of appointees eligible for review (as the 1986 Procedural
Affairs Committee had recommended), or by imposing procedural
restrictions on the lines of questioning permitted in the Committee’s
interviews. In recommending that parliamentary review of appointments be adopted at Westminster during the Blair years, the Public
Administration Select Committee suggested these were the kinds of
controls needed to prevent committee interviews from descending into
the unproductive partisan wrangling it depicted as typical of US Senate
hearings.31 The Brown government’s Green Paper indicates that the
executive intends to be actively engaged with the Commons’ Liaison
Committee in determining the appointments to be available for committee review, leaving open the question of Parliament’s independent
discretion to add classes of appointments to the list apart from those
approved by the cabinet.32
However, before concluding that the broader lesson offered by this
Canadian case-study is limited to issues of comparative institutional
design, it is important to remember that the NDP government’s disinclination to impose significant obstacles to party control of the interviewing process was tacitly endorsed by both the Conservatives and
Liberals, neither of which took the opportunity when in office to significantly disturb the procedural status quo bequeathed to them by the
NDP.33 This suggests that the structure of the interviewing process is
less the cause, and more the manifestation of the decisive variable
setting the outer limits to progress—the Legislature’s stridently partisan
work culture.
Cabinet Appointments to the Public Service
71
The operation of the Standing Committee on Government Agencies
in the Ontario Legislature thus illustrates the limitations of parliamentary institutions as the vehicle for fundamental change. The parties represented in the legislature determine the values brought to bear on the
scrutiny of government. Further reforms aimed at stamping out traditional patronage in appointments must await the exogenous stimulation of public outcry. The extent to which this will be forthcoming
will vary from jurisdiction to jurisdiction, both within Canada as well
as elsewhere. Ultimately it is up to the electorate, and not the politicians themselves, to decide what constitutes integrity in government.
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17
Many thanks to the anonymous reviewers of this journal for their comments on an earlier version of
this article, as well as the insights and suggestions of my colleagues Professor Graham White and
Professor Linda White in the Department of Political Science at the University of Toronto.
Ministry of Justice, The Governance of Britain, 3 July 2007, Cm 7170, para. 72 –81.
Bernard Crick’s memorable phrase, from his The Reform of Parliament, Weidenfeld and Nicolson,
1968.
See Franks, The Parliament of Canada, University of Toronto Press, 1987; J. Malloy, ‘The House of
Commons Under the Chrétien Government’, in G. Bruce Doern (ed.), How Ottawa Spends 2003 –04,
Oxford University Press, 2003, pp. 59 –71; M.M. Atkinson and D. Docherty, ‘Parliament and
Political Success in Canada’, in M. Whittington and G. Williams (eds), Canadian Politics in the 21st
Century, Nelson, 2004, pp. 5 –30.
G. White, The Ontario Legislature: A Political Analysis, University of Toronto Press, 1989.
Ontario Legislative Assembly, Debates, 2 July 1985, p. 407 (Liberal Premier David Peterson).
Ontario Legislative Assembly, Standing Committee on Procedural Affairs, Report on Appointments
in the Public Sector, June 1986, p. 11.
Ibid.
Ibid., p. 14.
Ontario Legislative Assembly, Debates, 10 December 1990, pp. 2489 –90.
Standing Committee on Procedural Affairs, Report on Appointments in the Public Sector, p. 23.
Formally Standing Order 106(e). The text summarises the Committee’s working modus operandi
under the rules introduced by the NDP government, which has not changed significantly since the
1990 –1995 legislature.
Note, new appointments. Re-appointments of sitting ABC members do not come within the
Committee’s jurisdiction.
It is also worth pointing out that by long-standing convention, the chair of the Standing Committee
on Government Agencies is drawn from the ranks of the smaller of the two opposition parties. The
strength of this convention is evidenced by the failure of the current Liberal majority government to
install a government MPP as chair following its election victory. After concerted resistance to this
move from the opposition parties in the early months of the 2003 –2004 sitting, the Liberals backed
down. See Ontario Legislative Assembly, Debates, 27 April 2004, pp. 1769 –1970; Standing
Committee on Government Agencies, Debates, 28 April 2004, p. A73. Throughout the time-period
covered by this article, the size of the Standing Committees has fluctuated considerably, between nine
and 14 Members.
Standing Committee, Debates, 1 May 1991, p. A409 (Silipo, NDP).
Throughout the period covered by this article (1991 –2006), as all three parties took their turn in
office, the government caucus voted unanimously to concur in the appointment of every appointee
interviewed by the Committee—except on a small handful of occasions when a government Member,
unhappy with the answers he or she had received to questions, expressed disapproval with a candidate
by either abstaining or absenting him or herself from the committee room before the vote.
Standing Committee, Debates, 6 February 1991, p. A210 (Perruzza, NDP); p. A210 (Waters, NDP);
3 April 1991, p. A365 (Wiseman, NDP); pp. A366 –A367 (Silipo, NDP); 1 May 1991, p. A406
(Silipo).
P. Norton, ‘Playing by the Rules: The Constraining Hand of Parliamentary Procedure’, Journal of
Legislative Studies, 7, 2001, pp. 13 – 33.
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18
The category of ‘declared government partisan’ includes all appointees who acknowledged a connection with the governing party, either as a former MPP or federal MP; an unsuccessful candidate for
the party; a party member or activist; a financial supporter; or, in a small number of cases, the spouse
of a known governing party supporter. The category of ‘declared non-partisan’ includes appointees
who, under questioning, categorically denied being a supporter of any party. The category of ‘other’
includes appointees who either professed support for more than one party; who refused to answer
questions about their possible partisan involvement; or who were identified as a supporter of one of
the opposition parties.
Standing Committee, Debates, 24 January 1996, p. A –90 (Kormos, NDP).
As well as 647 to District Health Councils in total, and 395 to Early Years Steering Committees in
the 1999 – 2003 legislature. These are ABCs whose members require few formal qualifications, and
consequently became the focus of attention for the opposition seeking evidence of the patronage
principle.
J.R. Mallory, ‘Parliament: Every Reform Creates a New Problem’, Journal of Canadian Studies,
1979, p. 32.
Standing Committee, Debates, 6 June 2001, p. A76 (Martin, NDP); 20 June 2001, p. A118 (Crozier,
Lib.); 23 October 2002, p. A108 (Martin).
Standing Committee, Debates, 6 June 2001, p. A76 (Martin, NDP).
Standing Committee, Debates, 23 October 2002, pp. A108 –A110 (Wood, Cons.).
Standing Committee, Debates, 29 March 2006, p. A126 (Bisson, NDP).
During the Blair years such a recommendation was variously made by the Liaison Committee
(Shifting the Balance, 1999 – 2000), the Public Administration Select Committee (Government by
Appointment: Opening up the Patronage State, 2003), party commission reports and others. For a
review, see L. Maer, Parliamentary Involvement in Public Appointments, House of Commons Library
Standard Note SN/PC/4387, 24 July 2007.
M.M. Atkinson and D. Docherty, op. cit., no. 3, pp. 7 –8, 26.
The formulation in this sentence is borrowed from John Uhr’s discussion of the appropriate standards
for evaluating parliamentary performance, in his ‘Parliament and Public Deliberation: Evaluating the
Performance of Parliament’, University of New South Wales Law Journal, 24, 2001, pp. 710 – 1.
For examples see Conservative Premier Harris’ responses to the opposition at Ontario Legislative
Assembly, Debates, 3 April 1996, pp. 2074 –75; 17 June 1997, pp. 10681 –2.
Standing Committee, Debates, 6 December 1995, p. A-53 (Kormos, NDP).
Public Administration Select Committee, Government by Appointment: Opening Up The Patronage
State, HC 165 –1, Fourth Report 2002 –03, para. 105 – 10.
Ministry of Justice, The Governance of Britain, para. 74 –6, 78 and 81. See L. Maer, op. cit no. 26,
p. 10.
The most significant reform occurred in August 1997, when the Conservative government amended
the Standing Order to remove from the Committee’s jurisdiction all appointments for terms of one
year or less. Rather predictably, the government subsequently took advantage of this loophole with a
number of controversial appointments of party supporters for terms of one year, thereby evading
review by the Committee. For comment see Standing Committee, Debates, 24 November 2004,
pp. A279 –A280.
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33