One of the important issues Unjust by Design addressed was the nature of the processes by which the adjudicative members of judicial tribunals [adjudicative tribunals] were selected and appointed, and the role that patronage and partisan politics traditionally play in such processes.
The book addressed particularly the modern phenomenon of governments publicly eschewing patronage appointments and committing to merit-based, qualifications-driven appointments processes (a phenomenon that has surfaced most recently in the Federal jurisdiction with the government’s assurances about the care it has taken in ensuring that members appointed to the new Social Security Tribunal were fully qualified).
It is a phenomenon that Unjust by Design examined, beginning at page 52, under the heading “The Chimera of ‘Merit-Based’ Reforms”.
To quote Merriam Webster, a “Chimera” is something that exists only in the imagination and is not possible in reality – in fact, rather like an ignis fatuus.
MERIT-BASED APPOINTMENT PROCESSES MAY BE LESS THAN THEY SEEM
Unjust by Design introduced its section on the “Chimera” of merit-based reforms with this sentence:
When a government announces that it has … committed to a merit-based [qualifications-driven] appointment process, experience suggests that one’s natural skepticism is likely to prove justified.
The book then investigated what can go wrong with so-called merit-based selection processes by looking at what went wrong with the merit-based selection process that was introduced with much fanfare by the Federal Liberal government in 1995 respecting the appointment of IRB members. The relevant passages from UBD read as follows (pages 52 to 57; footnote references have been removed):
The IRB Appointment Process, 1995-2007
A classic case in point is the merit-based selection process for appointments to the IRB introduced by the Liberal government of Jean Chrétien in 1995 in response to … media criticism [of the IRB appointments process] in the first half of the 1990s … .
In that year , the government committed to a merit-based appointment process for the IRB and established a “Ministerial Advisory Committee on the Selection of Members of the Immigration and Refugee Board” (the Advisory Committee) and provided it with a set of qualifications by which it was to be guided when evaluating candidates. …
By 2002, the year that Peter Showler retired from his three year term as chair of the IRB, the Advisory Committee had been at work for seven years, with the government’s [public] commitment to this merit-based selection system in full sway all that time.
And yet, as disclosed by Showler in his 2003 interview with the Toronto Saturday Star [quoted at length at UBD, page 24], political patronage remained “a devastating blight on the Immigration and Refugee Board.” Moreover, Showler tells me that at the time he retired, although 10 to 15 percent of the 170 appointed members in the Refugee Division of the Board were in his estimation excellent, 10 to 15 percent, or 17 to 25 members, were in his opinion incompetent, while the rest were “adequate.”
In assessing the current “merit-based” reforms … it is therefore important to understand how from 1995 to 2002 the federal government’s patronage apparatus succeeded in effectively finessing an IRB appointment process that was supposed to be a merit-based system.
Why is it … that over the course of its seven-year history this merit-based appointment system … produced so relatively little merit?
In the first place, both the penultimate and the ultimate selection decisions were left in the hands of partisans. The members of the Advisory Committee … were all chosen by the Minister… [D]uring Showler’s term as IRB chair it was known that the members of the Advisory Committee (by then twelve) were all Liberal Party partisans, with the Committee chair at the time being both a former judge and former Liberal Party candidate.
Next, the system provided the Minister with a broad latitude in selecting the [ultimately] successful candidate. The goal of the Advisory Committee was to provide the Minister with as large a pool as possible of candidates certified by the Committee to be qualified. Thus, for the appointments to be made in 1996, the Committee provided the Minister with 150 or 160 names for what was expected to be about 50 vacancies.
On what basis did the Minister select from this large pool of certified candidates? It could not have been through an objective assessment of their relative qualifications. The Advisory Committee did not rank its recommendations and the only thing the Minister and the Minister’s staff had to go on was a one-paragraph recommendation from the Committee. The Minister’s office was not provided with the recommended candidates’ resumés.
Obviously, the only basis for [the Minister’s] selection was the relative merits of their [the candidates’] partisan patronage credentials, the one thing the Minister’s office would have known about.
Evidence of the determinant role that patronage continued to play in the final decisions can also be found in the fact that the Advisory Committee’s work failed to speed up the pace of appointments. And what was causing the delays?
As Peter Showler told the Star reporter in 2003, [the delays] were caused by political infighting within the Liberal Party as to which of the certified candidates “should get the patronage plums” – which of them would actually be tapped for an appointment.
Obviously, in such an environment the deciding factor was how one candidate’s partisan credentials stacked up against the partisan credentials of the others – how one candidate’s party patron measured up in terms of political influence compared with the patrons of the other candidates.
In the Minister’s office, partisan credentials were the only currency – the only known qualifications. Those whose names made it into the Minister’s office but who had little or no [or negative] partisan credentials had obviously been wasting their time.
One of the main features of a typical, self-proclaimed merit-based selection process which the book also highlights is that it is not usually a process designed to select the most qualified candidates; it is designed only to ensure that any candidate selected can be shown to have been certified as “qualified”.
HOW DOES THE SST’s SELECTION PROCESS STACK UP?
Given Unjust by Design’s preoccupation with the often misleading aspects of traditional merit-based selection processes, the reader will not be surprised at my interest in the details of the Social Security Tribunal’s vaunted selection process – the process whose rigor had apparently been the reason for the surprisingly extended delay in rolling out the new tribunal.
What is known about the SST selection process is that it involved the posting of the vacancies in various newspapers – postings that included a description of the qualifications that the government was looking for – with applicants being required to fill out a written assessment that included a knowledge test and a written-decision test.
The written assessment, including the two tests, were reviewed and candidates selected for interviews. Then someone selected the names of candidates that would be sent to the Minister’s Office where the selection of the candidates who would in fact be appointed was made.
With the Unjust by Design‘s inquest into the failure of the IRB 1995 merit-based system in mind, I was interested in the answers to the following questions concerning the SST appointments process:
- Are the the written assessment form which applicants were asked to complete,
including both the knowledge test and the decision writing test, available to the public?
- Who**, exactly, had designed the written assessment, and the tests and who evaluated the completed assessment and tests?
- Were they pass-fail tests, or were they graded?
- What proportion of applicants were invited to an interview?
- Who decided which applicants should be interviewed, and against what criteria?
- Who decided after the interview that an applicant should be included in the pool of candidates to be sent to the Minister certified as “qualified”? What was the selection criteria?
- Were the names submitted to the Minister ranked, and, if so, who did the ranking and on what criteria?
- What percentage of candidates whose names went to the Minister were actually appointed to the Tribunal?
- Who decided which of the candidates on the lists submitted to the Minister would be appointed?
- What selection criteria was that person or persons using in making those selections?
- Were they seeking to identify the candidates who were the best qualified candidates?
- If the list of candidates sent to the Minister’s office was a ranked list, how did the names of those appointed compare to the rankings. What proportion of candidates were appointed who had rankings lower than those who were not appointed?
- Did the person or persons making the appointment decision have each candidate’s professional biography, test results, and interview results, and, if so, was that information used to compare each candidate to the others?
** (In asking “who”, in this question and others. I would not, of course, be interested in the name of the individual – but in their category: essentially, were they professional human resources officials, or, perhaps, the Tribunal Chair? Or were they, or did they include, political operatives with a partisan bias?
An effort was made to get information that would throw light on these questions, or most of them, through an application under the Access to Information Act by a group of which I was a member. However, none of the information that would answer these questions was made available because of the Privy Council Office’s reliance on the following exemption provisions of the Act:
19(1) – Personal information
21(1)(a) – advice or recommendations developed by or for a government institution or a minister of the Crown
21(1)(b) – an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate,
69(1)(d) – records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
69(1(e) – records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
Based on the information that is available, the government has given the public no reason to be confident that partisan, ideological considerations were not a major influence in the ultimate choices of persons to be appointed to the SST.
If the selection process were, in fact, competitive and objective, providing information that would make that clear to everyone would give the Tribunal a huge boost in how it is perceived by the public, the private bar, and the parties appearing before it. The government’s refusal to do so leaves objective observers grounds for reasonably apprehending that the selection process might have been in fact manipulated for partisan political or patronage purposes – manipulated in roughly the same manner that the selection of IRB members was manipulated from 1995-2002.
As Unjust by Design points out (page 50), partisan/patronage-driven appointment regimes run counter to the public interest [particularly, I might add, to the interests of those who depend on the competence and impartiality of members for decisions that are of life-altering potential] because they are not regimes that aspire to appointing the most qualified persons.
Not only do these regimes rule out any actual candidate, however well qualified, whose partisan credentials are non-existent or even not optimal but they also fail entirely to attract the interest of the majority of qualified potential candidates who, being apolitical or having no currently relevant partisan credentials, and understanding the nature of the game, will rarely waste their time applying.
And so it goes …