The Puzzle of Independence for Administrative Bodies

Abstract

This article explores independent administrative bodies, and their place in Canada’s political, constitutional and legal landscape. While these adjudicative, regulatory and accountability bodies have come to play an integral role in the lives of every Canadian, we tend to pay attention to them only when there is a problem or a headline grabbing incident. Allegations of political interference with Elections Canada, the Canadian Military Complaints Commission and the Canadian Nuclear Safety Commission by the Federal government have brought the puzzle of independence of these bodies into stark relief.

The article treats each of these incidents as cautionary tales. These cautionary tales are part of a broader puzzle. All administrative bodies are, by definition, dependent for their existence on their legislative mandate. Further, these bodies are not free to adopt the mandate they believe is most appropriate, but must discharge the responsibilities provided to them. These bodies do not choose the people best able to carry out this mandate; rather, the executive controls appointments. Notwithstanding the significant ways in which these administrative bodies are dependent on government, however, they are nonetheless routinely declared by courts to be independent, and protected from political interference by common law procedural doctrines modeled after the constitutional principle of judicial independence.

The recent confrontations show that there is little to compel Canadian governments to respect the independence of administrative agencies if they do not want to. They reveal the hard but important truth about independence in administrative decision-making: while the rule of law and principles of fairness and impartiality may require independence, only political leadership can sustain it. Political leadership created independent agencies in order to ensure that important areas of the public interest (such as governing fair and free elections, regulating nuclear power and overseeing military police activities) are served by people and institutions that are not caught up in partisan politics. Only political leadership can ultimately safeguard the independence of administrative bodies, so that they are free to pursue the public interest without partisan interference.