Will This Dog Hunt? Requirements for an Independent Seniors’ Advocate for British Columbia

The May-July, 2012 public consultation process undertaken by BC’s Ministry of Health is a positive response to the reports of BC’s Ombudsperson on Seniors in the province.  The appended Discussion Paper identifies several key aspects of such an office; and various groups – senior and other – have added voice and concern to how such an Advocate might be structured.

Central to this are questions about the independence of such an Advocate. BC has a long and positive history of establishing and dealing with – and through – independent officers. There are high levels of public trust, and occasional governmental uncomfortableness, irrespective of political stripe, because of this independence. Few disagree, even those feeling some of this quite occasional discomfort, that this inherent tension serves our democracy and good governance well. Past reports of Independent Offices like our Auditor-General, have the public generally convinced that the independence of such offices is key to building and maintaining political trust.

One of the best books written on this issue of an Independent Office is “Cordial But Not Cozy: A History of the Office of Auditor General”, by Sonja Sinclair (Toronto: McClelland and Stewart, 1979). That healthy tension, recognized by legislators in establishing such an office, is essential. Governments of the day may sometimes disagree but public trust is well served by an independence which reports to the public through its elected Members versus to any minister or government of a particular day.

And British Columbians know of BC’s ‘other’ Independent Officers of the Legislature BECAUSE each was (a) set up by the legislature AND (b) because each was made independent of the executive branch.  That structural component has allowed each to serve both the public good and its legislative mandate exceptionally well.

BC has added offices such as the BC Chief Elections Officer, (1947 and as an Independent Officer of the legislature, in 1995) to ensure fair and impartial elections, the BC Ombudsperson (1977 plus first Officer in 1979) to safeguard administrative fairness and justice – both within and beyond the public sector,  BC’s Freedom of Information and Privacy Commission,  a dual body which has responsibility of ensuring public access to governmental information , and to protect the privacy of British Columbians both within government and in the private sector.   And subsequent Lobbyist Registrar to oversee lobbying activity and ensure transparency in BC, the BC Conflict of Interest Commissioner (1990/1991), to oversee public sector ethics amongst elected provincial officials, the BC Police Complaints Commission (1998) to investigate complaints about police conduct, and the  Representative of Children and Youth, to advocate for young British Columbians.

Each, most particularly by exercising its independence, added considerably to public trust and the health of provincial democracy. The test and the crux of any such office is its independence.  This is so because at key points in any such mandate push may come to shove. How such offices are constructed can pre-determine any push-shove outcomes and that, by itself, either undermines or re-inforces public confidence in policy outcomes.  This is not to suggest that Independent Officers should always prevail, but it does mean that ‘the test of the ‘reasonably well-informed person’ can be passed by a process where the public knows and can see how independent such an Officer can be in those fairly rare instances when there might be some disagreement.

Several versions posed for the BC Seniors’ Advocate, despite – even because of – notions of quasi-independence, simply fail this test. If the result of consultations and subsequent decision-making is only quasi-independence, then a key democratic test has been failed.

BC has a clear model of what an Independent Officer of the Legislature looks like;  their histories are filled with contributions to our good governance. Quasi-independent officials are simply not independent, despite all efforts to put lipstick on these animals.  Simply put, quasi-independent officers will not hunt.

The BC Ombudsperson has clearly identified that BC seniors need an Advocate.  Seniors are a major and growing demographic in the province – more than anywhere else in Canada. Settling for a quasi-independent Advocate does not mean that some good work cannot be done (Canada’s military “ombudsman” can attest to that, despite reporting to the Minister vs. Parliament), but in the life of any/every Independent Officer some crunches come to push and shove.  If legislatures have done their jobs well on ‘mandates’ (after all, Independent officers were initially set up as important aids to legislative accountability regimes), then such representatives/auditors/ police complaint/conflict-ethics-lobbyist/freedom of information and privacy/and such-like Independent Offices serve our public and public policy interests well. Such relationships are not set up to be cozy;  they are established to act on behalf of specific publics and from time to time to push back at executive actions of our governors.

As for the idea that  a new BC Seniors Advocate might need “more independence” that Independent officers have, confined as they are by legislative Acts, when you look across all of BC’s Independent Officers,  it is clear that the private sector is also covered by several of their mandates and oversight for the public – whether re: privacy or lobbying or administrative oversight.  Indeed, as with  FOI/Privacy legislation – or other Acts –  the BC legislature has added to such Acts to ensure  related ‘private’ actions can equally be captured by the protections included in the legislation.  That can certainly be included in a BC Seniors Advocate Act, while ensuring the capacity of seniors to feel that their Advocate can speak his or her mind on their behalf.

Less than real independence for a BC Seniors’ Advocate will be insufficient.

Bottom line:  Independent Officers are defined by their independence.  Quasi-Independent Officers are not – but rather by their reporting relationship to a responsible Minister.

by.
Patrick J. Smith, Director
Institute of Governance Studies
Simon Fraser University

Brief for the
Seniors’ Action Plan Consultation on Creation of a Seniors’ Advocate for BC
Ministry of Health
SeniorsAdvocate@gov.bc.ca