When a government department messes up, should the minister take the fall?

Neither Catherine Tully nor Michael Pickup pulled their punches last week in describing the way the province failed to safeguard the private information of hundreds of Nova Scotians.

“The root cause was a serious failure of due diligence,” Tully, Nova Scotia’s privacy commissioner, told reporters Tuesday.

She called what her office uncovered during its investigation of a privacy breach “jaw-dropping” and “astounding.”

“It took the contribution of quite a few people doing a poor job for this to happen,” she said.

Pickup, Nova Scotia’s auditor general, was incredulous of the attitude of the province’s Department of Internal Services in launching a first-of-its-kind online freedom-of-information portal.

“How anyone could have possibly thought, with all of the risk factors that were present, that this was low risk … I find astounding,” he said.

Premier Stephen McNeil says he supports Patricia Arab. (Robert Short/CBC News)

The scathing assessment from both independent provincial offices drew a predictable response from the leader of the Official Opposition.

PC Leader Tim Houston told reporters that the provincial government’s failure was “so shocking and so broad that I don’t understand how the current minister could possibly fix it.”

“This is a very significant failure of government and that’s going to require new people to build the trust,” he said.

Moments later, the minister overseeing the department, Patricia Arab, brushed off the suggestion she resign when asked if she had offered to leave cabinet.

“My focus has been on containing our information, understanding what actually happened and moving forward to make sure that we do better,” she said.

Her boss, Premier Stephen McNeil, offered his total support.

“I have full confidence in the minister’s commitment to make the necessary improvements to ensure the private information of Nova Scotians is protected,” he said in an emailed statement.

The faulty security system led to more than 7,000 documents being downloaded on March 3, 2018, including several hundred with highly personal information. (Mal Langsdon/Reuters)

Protecting the private information of Nova Scotians was one of the tasks McNeil highlighted in his most recent ministerial mandate letter to Arab.

“Internal Services should continue to implement robust cybersecurity and privacy programs that protect Nova Scotians,” McNeil noted in the September 2017 letter to the minister.

Although Arab kept her job, Mount Saint Vincent University political scientist Jeff MacLeod said she should have, at least, offered to step down to uphold the constitutional concept of ministerial responsibility.

“The minister should have offered her resignation because it was a significant policy breach and a procedural breach,” he said.

“Given the nature and the severity of the breach there needs to be accountability and it stops with the minister.”  

Ministerial responsibility is a long-established convention in Canada, perhaps best defined to a royal commission in 1977: “The individual responsibility of the minister requires that he or she be personally responsible for the activities carried out under his or her authority.

“This concept is fundamental to the long struggle to impose responsibility on the exercise of power.”

Information and Privacy Commissioner Catherine Tully said social insurance numbers, addresses, phone numbers and even medical information and allegations of child abuse were left unprotected because of the government’s “culture of high tolerance for cybersecurity risk.” (CBC)

Lori Turnbull of Dalhousie’s School of Public Administration said she, too, believes ministerial responsibility is important to uphold.

“It’s important because these conventions that govern parliamentary democracy and parliamentary government, they are the linchpin of democracy in our system,” she said.

But it is a convention and subject to interpretation. There are no hard and fast rules that say when a minister should resign or be fired for a department’s error. Is is why ministerial resignations are rare.

“This idea of ministers offering resignations because of a screw-up in the department is extremely rare if it ever happens at all,” said Turnbull.

It seldom happens, according to Turnbull, “because the decision is a political calculation on the basis of the prime minister (or premier) and politicians [doing] what they can get away with.”

Nova Scotia has seen its share of resignations by cabinet ministers in the past several decades but none has quit as a result of a major mistake in their department.

Federally, perhaps the best known example dates back to 1985 when Progressive Conservative Fisheries Minister John Fraser resigned after an investigation by CBC’s Fifth Estate showed his department had knowingly approved the sale of a million cans of rancid Star-Kist tuna. 

Nova Scotia Auditor General Michael Pickup concluded the government didn’t fully assess the risks associated with the venture, nor did it conduct routine security measures before the website’s launch. (Robert Short/CBC)

MacLeod and Turnbull agree that in the years since then, the political impetus for a minister to fall on their sword has waned. 

“The concept has validity, but it has eroded in Canada and Nova Scotia over the decades,” said MacLeod.

“That’s unfortunate because that is an essential element of the system. It needs to have that kind of check and balance or else it’s just a free-for-all.”

Said Turnbull: “If you take resignation, if you take the end of someone’s cabinet life as this is the ultimate price you can pay, this is what accountability means.”

MacLeod and Turnbull also agreed it ultimately fell to McNeil to judge whether Arab kept her current portfolio or should be relegated to the back bench for her department’s mishandling of confidential files.

“I think if there’s any doubt in the premier’s mind about the competence of the minister, then the minister shouldn’t be there,” said Turnbull.

“I think it’s the premier’s decision and we should be looking at the premier for enforcement of the convention.”

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