Nuclear fight a symbol of PS 'disintegration:

The Ottawa Citizen: Kathryn May - January 12, 2008

PM's attacks on watchdog may cause backlash on relationship between tribunals, ministers and industries, senior bureaucrats warn

Nuclear watchdog Linda Keen is the talk of the bureaucracy as a marked woman who had the guts to stand up to a bullying minister, but may well pay the price with her job.

The showdown between the federal government and Ms. Keen, the president of the Canadian Nuclear Safety Commission, escalated this week when the Prime Minister Stephen Harper said her refusal to allow the restart of the Chalk River reactor jeopardized Canada's health system. He said her decisions forced Parliament to pass emergency legislation to protect the medical supply of isotopes used in diagnostic cancer and cardiology tests.

It's the latest attack on Ms. Keen from a government that has threatened to fire her over the shutdown at Chalk River. The fiery correspondence between Ms. Keen and Natural Resources Minister Gary Lunn released this week was a must-read in Ottawa circles. Some even say it is destined to become a textbook case in public administration schools of how badly relations between Canada's bureaucrats and its politicians have deteriorated.

Errol Mendes, a law professor at the University of Ottawa, said the incident is indicative of the "disintegration" of a public service, buried under rules, that has lost its purpose to fear and intimidation. He pointed to a similar attack on Chief Electoral Officer Marc Mayrand when the government went around his decision with legislation that forbade veiled women from voting without having to show their faces.

"They aren't just telling public servants to move ... they are telling them to get in and move in my direction," said Mr. Mendes. "This is a government that only wants to see and hear what it wants to see and hear and if you get in their way, watch out." In a series of letters, Mr. Lunn blamed Ms. Keen for the shutdown of Atomic Energy of Canada Ltd.'s reactor, threatening to fire her unless she gave him reasons she ought stay in the job. Ms. Keen retaliated by calling for a public inquiry, saying Mr. Lunn had overstepped his bounds and was

interfering in the operations of an independent agency.

Ms. Keen, a director of the Canadian Council of Administrative Tribunals, warned Mr. Lunn in her letter that his actions will have a "significant chilling effect" on the practices and decisions of the dozens of tribunals that operate at arms length from the government to implement laws and regulations for Canadians.

And most observers agree.

"The government of Canada has become a game of whack-a-mole. You stick your head up too far and you're whacked. So this woman has guts, in my opinion. She showed courage. She did what was right, not what was easy," said Linda Duxbury, professor at Carleton University's Sprott School of Business who has long studied the public service.

Bureaucrats have watched this drama unfold since Mr. Harper stood in the House of Commons and branded Ms. Keen as a Liberal appointee who was responsible for the shutdown that prompted a worldwide shortage of isotopes. As one senior official lamented, "it's open season on bureaucrats." "The icing on the cake was the prime minister's astonishing statement in Parliament that a Liberal appointee was responsible for risking the health consequences of Canadians. That threatens members of every tribunal appointed by other governments," said Mr. Mendes.

Many senior bureaucrats predict a backlash that will affect relationship between tribunals and ministers, as well as the industries they regulate. They worry the impact could extend beyond tribunals to appointees on task forces, roundtables, and even bureaucrats within departments who enforce regulations who could fear public censure or losing their jobs if their decisions run afoul of the government.

One senior official said regulators should have good and open relations with ministers, but this incident may leave many thinking twice. Regulators could dig in their heels and refuse to talk to deputy ministers and ministers unless such discussions are formalized and recorded, all of which bogs down decision making and feeds mistrust.

"The public service will not stand for abuse for very long and it will defend itself in the traditional way and will commit everything to paper and formalize every process and that will slow down government," said Donald Savoie, a professor at the University of Moncton.

Lorne Sossin, a law professor at the University of Toronto, said "chill" is a big concern because regulators and ministers should have "constructive relationships," especially since the minister is ultimately accountable for regulators' performance. He said the chill could extend to dozens of provincial regulators and tribunals.

Others fear the fiasco could further "politicize" the public service, with regulators checking for signals and unconsciously looking for signs on how government would react to their decisions.

"The fear of the chill cuts both ways," said Mr. Sossin. "Some regulators will circle their wagons and stonewall even legitimate government overtures, while others will think twice before ruling against the government in a politically sensitive matter." But not everyone agrees with this assessment. Reid Morden, who formerly headed AECL, said the furore is nothing more than the long-time "guerrilla war" between AECL and the commission coming to a head.

"This has been going on for some time and its roots go back to past governments; now it's broken into the open and got everyone's attention. I don't think it has broader implications," he said.

Gilles Paquet, senior research fellow at the University of Ottawa's school of public and international affairs, said he's infuriated at the bureaucracy and media's "lionization" of Ms. Keen, whom he calls a "drama queen." "Bureaucrats think their views are so God damned pure, neutral and untouchable that if any government dares challenge it, that government is tainted. That line of argument makes me puke," said Mr. Paquet. "What I expect from regulators is that they serve as safeguards. It doesn't mean they are omnipotent persons and ...." He said the government faced a tough policy issue, weighing the nuclear risk of

restarting the reactor against cutting the supply of medical isotopes. He argued the "watchdog can't run the house" and accused public servants of crying "chill" to rationalize what he calls their "passive disloyalty" and poor advice to the Harper government. Mr. Paquet has long argued public servants are more comfortable with the Liberals, largely because that party has spent so much of the past century in power.

"I don't approve of the prime minister's statements or Mr. Lunn's letter, but if someone died in Toronto because of no isotopes, it's Lunn who would be the bum, not her, and she is being lionized as the queen," he said.

The whole affair has prompted much speculation with the public service over whether Ms. Keen was perhaps too rigid and inflexible in carrying out her mandate, and whether a solution or compromise could have been reached to avoid the blowup. Many question why the deputy minister of Natural Resources, the Privy Council Office or the clerk, the key players who are supposed to defuse these kinds of political issues, couldn't find a solution.

Others say if Ms. Keen does hang onto her job, she has effectively been marginalized. The bureaucracy is a world where public servants are supposed to be non-partisan and invisible and such attention is a death knell to a career. As one bureaucrat described: Ms. Keen will have the backing of other regulators; be avoided by deputy ministers like she has 'beri beri;' will be persona non grata at the minister's office and the AECL will feel emboldened with new

political clout to challenge her decisions.

But Mr. Savoie said the reaction to Ms. Keen's threatened firing and Parliament's emergency legislation to overrule her decision and restart the reactors shows the traditional roles of Parliament, politicians and bureaucrats have changed, but everyone still tries to apply the old rules of the game.

"Parliament isn't supreme anymore. Fifty years ago, no one would question the right of Parliament to talk on this, and today we do. That's how much things have changed, but we still labour under the illusion that nothing has changed."

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