Prime Minister, thank you for calling again – a little late, but still… Yes, I do realize how busy you are and I am grateful that you are making some time for me.
The last time we talked, I was criticizing your projected reform of the GIC appointments process because it appeared to contemplate the same process for all appointments. I was making the point that adjudicative tribunal appointments require a different process than do agency appointments – the former designed to ensure that appointments are not and are not seen to be partisan, and the latter designed to get you the best partisan appointments.
So, today, Prime Minister, while we are still warming up on the subject, as it were – yes it may require a number of conversations before we’re done – I propose that I acquaint you with two, federal merit-based appointments processes for adjudicative tribunals that proved to be spectacular failures; two object lessons in how so-called merit-based appointment processes do not always – or, perhaps, ever – do what they seem to promise.
These precedents will be important background when the time comes that you are asked to approve your own appointments process for adjudicative tribunals.
Is that a reasonable agenda for today’s conversation? Okay, then lets do it.
The first of these object lessons is to be found in the Harper government’s process for selecting people to be appointed as adjudicative members of the SST (Social Security Tribunal).
Yes, that is the adjudicative tribunal that decides entitlement issues concerning CPP disability benefits. It also deals with employment insurance benefits, and old-age pensions.
The SST was launched on April 1, 2013, and took the place of the three long-established tribunals that had previously adjudicated these issues.
You may recall Harper’s ministers going on endlessly about the merit-based appointments process that the government used in selecting the members to be appointed to this new tribunal. The eight-month delay in getting the tribunal up and running was, indeed, defended on the basis of the government needing that time to get the appointments right.
Nevertheless, Prime Minister, the public was not impressed. The media reported that a significant number of appointees had turned out to have notable connections to the Conservative Party and, most troubling, that numerous candidates identified by the government’s “selection committee” as “qualified” had obviously been refused appointments for ideological or partisan reasons.
The rejection of qualified SST candidates on ideological or partisan grounds came to light when the Canadian Labour Congress reported that of the fifty labour-side members of the Employment Insurance Boards of Referees whose names had been put forward to the government by the merit-based selection committee as qualified for an SST appointment, none had in fact been appointed. This contrasted with the appointment of a number of employer-side members of the same Board of Referees. (The Board of Referees was one of the tribunals replaced by the SST.)
So what was this merit-based appointments process of which Mr. Harper’s Ministers were so proud but which produced a tribunal in whose impartiality the public had in fact no reason to be confident?
In main outline, the process was all that one usually finds in so-called merit-based appointment processes, viz:
- Develop a description of the required qualifications;
- Public advertisements of the vacancies to be filled and the qualifications required;
- Initial screening out of candidates whose qualifications do not measure up to the specified qualifications;
- Candidates who survived the initial screen, write an examination designed to test their analytical and writing skills and knowledge;
- Examination answers graded on a pass/fail basis;
- Candidates who passed the examination interviewed by a designated selection committee;
- Candidates who interviewed successfully, recommended by the committee to the appointing Minister as persons who are qualified to serve as members of the Tribunal;
- The Minister chooses who will be appointed from among the candidates recommended by the selection committee.
In fact, it was a process very like the one your own advisers will no doubt be recommending to you – indeed, a standard model for so called “merit-based” appointments systems. (It is, however, a system that has also been labeled a “hybrid” system – “merit-based but patronage driven”.)
The second failure-precedent involves appointments to the IRB (the Immigration Refugee Board).
If you were to look in your copy of Unjust by Design (well, yes, Prime Minister, I am the author of that book and, yes, it is indeed a troubling book, thank you) you will see at pages 52 to 56 the sorry history of what seems likely to have been the first merit-based GIC appointments scheme in the federal government’s history – a scheme of which Harper’s SST appointments structure was almost an exact duplicate.
It was a scheme designed to reform the process for appointing members of the Immigration and Refugee Board. It was introduced in 1995 by the Chretien government in response to what had been three years of bad press about the patronage-driven and partisan-driven nature of the IRB appointments under both Progressive Conservative and Liberal governments.
Yes, Mr. Trudeau, the IRB is an adjudicative tribunal.
In 2002, at the time the term of the then IRB Chair, Mr. Peter Showler, ended, the IRB’s merit-based appointments scheme had been fully operational for seven years.
And, yet, according to Showler himself, seven years after the inception of that appointments scheme political patronage remained “a devastating blight on the Immigration and Refugee Board”. (See the reference in my book to Showler’s 2003 interview with the Toronto Star).
Moreover, in Showler’s estimation, only 10 to 15 percent of IRB members could be considered excellent, while 10 to 15 percent were incompetent and the balance, say 70%, were only “adequate”.
It is true, Mr. Prime Minister – go to page 53 of the book, right at the top of the page, got it? Good. Thank you.
I should note in passing that part of what went wrong at the IRB was the failure to make the re-appointments process, patronage free.
I will come back to the re-appointments issue in a later conversation, but may I just earmark it here as an issue of huge importance for members of adjudicative tribunals from a justice system perspective. If adjudicative tribunal members are appointed to three- or five-year renewable terms, there is no use in having an exemplary appointments process if your re-appointment process remains arbitrary.
So, the next question we need to talk about is this: what were the inherent flaws in the SST and IRB merit-based appointments processes – the flaws for which you will want to be on the lookout in your own new appointments processes?
And, yes, that can be done on another day. I will wait for your call.